As some of you may know, I commonly write posts on “personal branding” involving sports figures and other celebrities.  (See here, here, here, here, and here).  Well, last week, a Seventh Circuit decision came down involving perhaps the most significant personal brand owner of all–Michael Jordan.  The Court’s summary was as follows:

This trademark and right of publicity dispute pits basketball legend Michael Jordan against Jewel Food Stores, Inc., the operator of 175 Jewel-Osco supermarkets in and around Chicago. On the occasion of Jordan’s induction into the Naismith Memorial Basketball Hall of Fame in September 2009, Time, Inc., the publisher of Sports Illustrated produced a special commemorative issue of Sports Illustrated Presents devoted exclusively to Jordan’s remarkable career.  Jewel was offered free advertising space in the issue in exchange for agreeing to stock the magazine in its stores. Jewel accepted the offer and submitted a full-page ad congratulating Jordan on his induction into the Hall of Fame. The ad ran on the inside back cover of the commemorative issue, which was available on newsstands for a three-month period following the induction ceremony.

To Jordan the ad was not a welcome celebratory gesture but a misappropriation of his identity for the supermarket chain’s commercial benefit. He responded with this $5 million lawsuit alleging violations of the federal Lanham Act, the Illinois Right of Publicity Act, the Illinois deceptive-practices statute, and the common law of unfair competition. Jewel denied liability under these laws and also claimed a blanket immunity from suit under the First Amendment. The district court sided with Jewel on the constitutional defense, prompting this appeal.

Jewel maintains that its ad is “noncommercial” speech and thus has full First Amendment protection. Jordan insists that the ad is garden-variety commercial speech, which gets reduced constitutional protection and may give rise to liability for the private wrongs he alleges in this case. As the case comes to us, the commercial/noncommercial distinction is potentially dispositive. If the ad is properly classified as commercial speech, then it may be regulated, normal liability rules apply (statutory and common law), and the battle moves to the merits of Jordan’s claims. If, on the other hand, the ad is fully protected expression, then Jordan agrees with Jewel that the First Amendment provides a complete defense and his claims cannot proceed. The district court held that the ad was fully protected noncommercial speech and entered judgment for Jewel.

We reverse. Jewel’s ad, reproduced below, prominently features the “Jewel-Osco” logo and marketing slogan, which are creatively and conspicuously linked to Jordan in the text of the ad’s congratulatory message. Based on its content and context, the ad is properly classified as a form of image advertising aimed at promoting the Jewel-Osco brand. The ad is commercial speech and thus is subject to the laws Jordan invokes here. The substance of Jordan’s case remains untested, however; the district court’s First Amendment ruling halted further consideration of the merits. We remand for further proceedings.

The Seventh Circuit noted that the textual focus of the ad was “a congrautlory salute to Jordan on his induction into the Hall of Fame.”  But it nonetheless decided that the ad was commercial speech because it served the “dual purpose” of promoting Jewel’s supermarkets.  Although the Court does not explicitly say so, it basically holds that anytime a commercial entity (or an individual, for that matter) congratulates a famous person with the hopes that their congratulatory message will engender some good will, they are engaged in commercial speech.  Notably, the Court rejected the notion that commercial speech should be restricted to speech where the commercial message was specific and explicit rather than “general and implicit.”  In sum, if an enterprising lawyer can come up with any way that a message could pose some commercial benefit to the speaker, then its commercial speech.

Frankly, I think the Court went overboard here in casting the “commercial speech” net.  Jordan is a public figure and he should not have legal authority to control the content of every message published about him, whether it’s a positive or negative message, and whether its spoken by an individual or a popular corporation.  Moreover, the mere fact that Jewel is a commercial entity and its congratulatory message was intended to make Jewel look good to its customers does not mean the speech was commercial.  I would contend that virtually all speech, whether positive, negative, congratulatory, or defamatory, is intended to engender some positive feedback vis-a-vis the speaker.  For example, if a Chicago cabby picks up a passenger and starts lauding Jordan and all his accomplishments, the cabby probably isn’t trying to convince the passenger of Jordan’s greatness.  Rather, he’s making the speech, in part, so that the passenger knows the cabby likes Jordan.  Simply stated, virtually everything we say, whether its about ourselves or someone else, is intended to tell the listener something about us.  We’re all a little self-centered like that.

Given this, it’s unclear to me  where the Seventh Circuit would draw the line between commercial and non-commercial speech, if it can even be reasonably drawn under the Court’s analysis.  For example, what if the CEO of Jewel had been interviewed on live TV and had told everyone what a huge Jordan fan he was.  Or what if he’d written a letter to the editor doing the same thing.  What about Gene Siskel?  Gene Siskel was a well-known Jordan mega-fan, and he made that clear on numerous occassions.  (When asked to list his three favorite things about Chicago, Gene named Michael Jordan, Mayor Daley, and the Film Center.)  This undoubtedly endeared him to and enhanced his public reputation amongst Chicagoan’s and sports fans.  Does that mean his speech was commercial?

Of course, lost in all of the legal analysis is the not-so-subtle fact that it takes a real asshole to sue someone for $5 million for posting a congratulatory message.  Unfortunately, its not all that surprising.  Jordan was a tireless and aggressive competitor, and those traits are laudable and served Jordan well during his playing career.  However, the excess he had in those traits was made up for by deficiencies in others.  Jordan’s hall of fame speech is, to my knowledge, widely regarded as one of the most bitter and petty displays in sports.  Thus, its not shocking that Jordan has brought a lawsuit like this.