Let freedom ring: Ryan Bomberger defeats NAACP lawsuit

The judge slighted the NAACP for turning the law 'into an instrument for chilling or silencing the speech of those who disagree with' it.
Wed May 20, 2015 - 4:34 pm EST
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May 20, 2015 ( – It's a victory for free speech. The Fourth Circuit Court of Appeals has ruled that the National Association for the Advancement of Colored People (NAACP) cannot force The Radiance Foundation, a pro-life nonprofit headed by Ryan Bomberger, to refrain from satirizing the NAACP's name.

The 36-page 3-0 decision, written by Judge J. Harvie Wilkinson III, reversed an earlier court ruling on explicit First Amendment grounds. "We think the district court made several errors," he wrote.

The case began in January 2013, when Ryan Bomberger, The Radiance Foundation's chief creative officer, penned an article titled "NAACP: National Association for the Abortion of Colored People." Although he had been using the term for some time, the NAACP discovered the article and sent Bomberger a cease-and-desist letter commanding him to stop referencing the organization's name.

In the letter, the NAACP argued that "National Association for the Abortion of Colored People" constituted "unfair competition and palming off of the NAACP's Marks" and that the name "will cause consumer confusion in the marketplace."

"It is ironic that a black man is being sued by the nation's oldest civil rights group for exercising his most basic civil right – the freedom of speech," Bomberger said at the time. "This threat of legal action from the NAACP is nothing more than a multi-million dollar organization's attempt to bully someone who's simply telling the truth."

The organization appealed to a law called the Lanham Act, which pertains to copyright infringement in commercial activity.

Bomberger proceeded to file suit against the NAACP in Virginia. U.S. District Judge Raymond Jackson sided with the NAACP in April 2014, ruling in a 52-page decision that "there is a sufficient nexus between Radiance's use of the NAACP Marks and the offering of information services, donation solicitation and fee-based billboard services such that the marks [sic] were used in connection with the offering for sale of services."

Bomberger's counsel appealed the case. The Fourth Circuit contradicted Jackson's ruling this Tuesday, with Judge Wilkinson penning a strong appeal to freedom of speech.

Regarding the Lanham Act, Wilkinson explains, "Persons may not misappropriate trademarks to the detriment of consumers or to the marks themselves. However, the Act's reach is not unlimited."

The Radiance Foundation's use of the NAACP's name, Wilkinson decided, has nothing to do with economics or commercial activity. Rather, it is a "comment on social issues under the First Amendment."

"Courts have taken care to avoid Lanham Act interpretations that gratuitously court grave constitutional concerns," Wilkinson wrote, "and we shall do so here."

Bomberger and The Radiance Foundation have long documented the NAACP's longstanding support of abortion, including its ties to, cooperation with, and awards received from Planned Parenthood, America's largest abortion chain. The NAACP rejected a pro-life resolution in 2007. In 2004, in order to be allowed at Catholic University, a local NAACP chapter had to distance itself from the national organization by promising not to advocate for abortion on campus.

Wilkinson took the NAACP to task for its use of copyright law to stifle dissent:

Political discourse is the grist of the mill in the marketplace of ideas. It may be that the only – but also the best – remedy available to a trademark holder is to engage in responsive speech..."Actual confusion" as to a non-profit's mission, tenets, and beliefs is commonplace, but that does not transform the Lanham Act into an instrument for chilling or silencing the speech of those who disagree with or misunderstand a mark holder's positions or views.

Bomberger expressed his pleasure with the ruling on his website: "This is a huge win for the First Amendment. The NAACP tried to crush our right to free speech but truth and justice prevailed."

Click "like" if you are PRO-LIFE!

Eugene Volokh at The Washington Post concurred: "Sounds right to me."

  national association for the advancement of colored people naacp, ryan bomberger