Michael Jordan v. Jewel Food Stores, Incorporat
743 F.3d 509
7th Cir.2014Background
- Preamble describes Jordan vs Jewel-Osco over a commemorative Sports Illustrated issue advertising Jewel’s stores.
- Time Inc. offered Jewel free ad space in exchange for Jewel stocking the commemorative issue; Jewel accepted and placed a full-page ad.
- The ad features Jewel-Osco logo, slogan, and Jordan imagery, aiming to promote Jewel’s brand.
- Jordan sues in Illinois state court for Illinois Right of Publicity, Illinois Deceptive Practices, unfair competition, and Lanham Act claims; seeks damages.
- Jewel removes to federal court; district court granted summary judgment, ruling the ad was noncommercial speech under the First Amendment; Jordan appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jewel’s ad is commercial speech under the First Amendment | Jordan/Jordan argues the ad is commercial due to brand promotion. | Jewel argues the ad is noncommercial speech protected fully by the First Amendment. | No; ad is commercial speech under Bolger framework; classification defeats First Amendment defense. |
| Whether the district court correctly applied the inextricably intertwined doctrine | Jordan contends combined commercial/noncommercial elements do not immunize the ad. | Jewel relies on the doctrine to treat whole as noncommercial. | District court erred; ad not inextricably intertwined; must apply commercial speech standard. |
| What framework governs the classification and what are the implications for merits | Classification as commercial allows Lanham Act and related claims to proceed. | Classification could foreclose merits by treating ad as protected speech. | Classification as commercial speech permits merits of Jordan’s claims to proceed; remand for merits. |
Key Cases Cited
- Bolger v. Baldrige, 463 U.S. 60 (U.S. Supreme Court 1983) (definition and scope of commercial speech; Bolger factors)
- Virginia State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (U.S. Supreme Court 1976) (early commercial speech protection and pricing/advertising context)
- Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (U.S. Supreme Court 1980) (test for governmental regulation of commercial speech)
- Discovery Network, Inc. v. City of Cincinnati, 507 U.S. 410 (U.S. Supreme Court 1993) (public-law context; commercial speech doctrine applied)
- Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (U.S. Supreme Court 1985) (commercial speech protection and disclosure requirements)
- Fox v. Board of Trustees of State Univ. of N.Y., 492 U.S. 469 (U.S. Supreme Court 1989) (advertising in university setting; core definition of commercial speech)
- Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (U.S. Supreme Court 1978) (distinction between commercial and noncommercial speech)