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ACLU and Press Groups Challenge State Law Restricting Political Advertising

Posted: January 04, 2012|Category: Free Speech

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The Rhode Island Press Association and Beacon Communications, the publisher of the Warwick Beacon, have today filed a lawsuit challenging a state law that has been interpreted to bar the media from running advertisements containing the names and photographs of public officials without their permission. The lawsuit, filed in U.S. District Court on the groups’ behalf by the Rhode Island ACLU, argues that the statute “has an impermissible and unconstitutional chilling effect on free speech and on the free exchange of ideas” in violation of the First Amendment.

The statute provides in full:

Any person whose name, portrait, or picture is used within the state for advertising purposes or for the purposes of trade without his or her written consent may bring an action in the superior court against the person so using his or her name, portrait, or picture to prevent and restrain the use thereof, and may recover damages for any injuries sustained by reason of such use. If the defendant shall have knowingly used the person’s name, portrait, or picture in such manner as is prohibited or unlawful, the court, in its discretion, may award the plaintiff treble the amount of the damages sustained by him or her.

Last September, Warwick resident Robert Cote, who has headed up the so-called “Car Tax Revolt,” took out an ad in the Warwick Beacon that criticized City Council members by name and included photos of them. In response, a Councilman advised the Beacon that he was considering suing the newspaper under the statute for running his name and photo without his permission. Notwithstanding the threat, the Beacon published a few more similar ads purchased by Cote, but changed at least one of them in response to the threat.

The lawsuit, filed by RI ACLU volunteer attorney Mark Freel, makes two arguments: first, that the statute was not meant to cover political advertising, but was “instead intended to prevent the unauthorized use of a person’s name or likeness in connection with the sale of products or services in commerce,” and to the extent it can be read otherwise, the statute is unconstitutionally vague and has a chilling effect on publishers’ free speech rights. In the alternative, the suit argues that if the statute does encompass political advertising, it is unconstitutionally overbroad by restricting political speech on matters of public concern. The suit seeks a court order declaring the statute unconstitutional on its face or as applied to political advertising.

“We found it extraordinary, given the rights afforded by the Constitution’s First Amendment, that an elected official should challenge the use of his name and photograph in an advertisement,” said Warwick Beacon Publisher John Howell. “If this were allowed to stand, it would seem that political advertising could become the subject of litigation that could stifle public discourse and give the candidate with the greatest resources the ability to suppress criticism.”

“Political speech has a tradition going back to the founding of the country," said Mark S. Murphy, president of the Rhode Island Press Association and editor of Providence Business News. "That any member of government would try to use the law to abridge that speech shows exactly why it should be protected and why the press association has joined this fight."

Added ACLU attorney Freel: “The vagueness of this statute has allowed the subjects of legitimate opposition ads on public issues to use the threat of liability to discourage newspapers in Rhode Island from accepting such ads. Interpreting the statute to encompass political advertising has an unacceptable and unconstitutional impact on public and political discourse in this state. We hope the courts will reject such a damaging use of this statute.”

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