Parody or free speech? Court to hear NAACP suit against Black pro-life group

“The irony never ends—the nation’s second oldest civil rights group suing a black man for exercising his second most basic civil right—the freedom of speech, ” Ryan Bomberger, founder of the Radiance Foundation.

In 1985, The NAACP Legal Defense and Education Fund, Inc., won a court case against the National Association for Colored People (NAACP) for trademark infringement, according to a Federal Court of Appeals. The case overruled the decision of a federal judge in 1983.

The court found that the NAACP began the Legal Defense Fund using the initials NAACP since 1939 but the organization had become too dependent over the years. That was where they went wrong.

Apparently, the NAACP created a monster and when tensions emerged in the 1960’s they went to court, charging their own created wing of trademark infringement.

As they always say, follow the money and what the NAACP said the Defense Fund did was infringe on their fund-raising.

So, it is no shock that if the NAACP would sue it’s own branch it would go after an outside Black organization which used it’s initials in a parody.

Enter the Radiance Foundation.

In January 2013, Radiance, a non-profit organization dedicated to educating people about social issues from a Christian perspective, posted an article on two of its websites critical of the NAACP’s position on abortion and its support of Planned Parenthood.

After the article, “NAACP: National Association for the Abortion of Colored People,” was posted by Radiance, and then picked up by the news site Life News, the NAACP received complaints about its position on abortion.

Anyone see a pattern here?

Allow me to paint the picture as it is unfolding, if complaints arise then donations may go down i.e. follow the money!

In response, the NAACP sent a cease-and-desist letter to Radiance, threatening trademark infringement litigation if Radiance refused to comply with the NAACP’s demands.

The NAACP also threatened Life News for reporting on the story.

In April, a court ruled that The Radiance Foundation engaged in trademark infringement after doing nothing more than posting an article online that parodied the NAACP’s name.

The Radiance Foundation then filed a declaratory judgment action in federal court, and in return, the NAACP has filed counter-claims of “trademark infringement, dilution and confusion” for parodying the organization’s name in what the group describes as, “the NAACP’s documented pro-abortion position and actions.”

“This lawsuit should be shocking to any American who values truth and the First Amendment,” explains Bomberger who is a citizen journalist and Emmy Award-winning creative professional. “The irony is painful. The NAACP is suing me—a black man—for exercising my Constitutionally-guaranteed right to free speech.”

In other words, the full multimillion dollar NAACP organization is going after one Black man because he dared to call them out on abortion.

Unfortunately, in the initial hearing, Judge Raymond Jackson found Radiance guilty, concluding in a 52-page opinion, that “The NAACP has no formal or official position or policy regarding abortion.”

Bomberger claims that Judge Jackson simply ignored trial evidence such as the NAACP’s own 2004 Convention Resolution and online Press Release announcing: “NAACP Board Takes Historical Prochoice Position“.

“This announcement was followed by the NAACP’s participation in a Planned Parenthood DC abortion rally protesting the passage of the Partial Birth Abortion Ban Act. Since then, the NAACP’s actions have been inarguably pro-abortion,” Radiance Foundation writes in their press release.

According to Bomberger, “There is no question about the NAACP’s position on abortion. They passed a resolution at their annual convention in 2004 erroneously entitled: “The March For Life”.

The document Bomberger published is interesting considering that the annual pro-life march is also called a “March for Life.”

But…I digress.

Bomberger cites other areas where he believes the Judge ignored evidence in the case:

The judge wrongly claimed on page 41 of the Order: “The NAACP has intentionally refrained from taking a stance on abortion, and certainly has not been alleged to advocate for the abortion of people of color.”

Never mind the NAACP not only promoted the pro-abortion “March for Women’s Lives”, it led from the stage.

Former NAACP President Julian Bond was a featured speaker at event as well as the keynote speaker at a fund-raising dinner for NARAL, the same year, where he praised the fact that “black women exercise this precious [abortion] at rates far exceeding their percentage of the population.”

Never mind Planned Parenthood is a corporate sponsor of the NAACP’s annual conventions.

Never mind the NAACP filed a lawsuit against the state of Arizona for its Prenatal Non-Discrimination Act, which banned sex-selection and race-based abortions.

Never mind the recent president of the NAACP, Benjamin Jealous, was the keynote speaker at a Planned Parenthood of Southeast Georgia fundraiser where one could purchase a $1000-a-Margaret-Sanger-Founders-Circle package to help raise money for the political arm of the abortion chain.

Bomberger and his Alliance Defending Freedom attorneys are not the only ones who believe parody is free speech and not trademark infringement.

In fact the ACLU, which is generally pro-abortion has filed a brief on The Radiance Foundation’s behalf.

Their brief was summarized by Harvard Journal’s, Jolt Digest, which wrote, “the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union of Virginia, Inc. (“ACLU”) filed a joint amicus curiae brief in the U.S. Court Of Appeals For The Fourth Circuit for the Radiance Foundation, Inc. In its brief, the EFF and the ACLU urge that “trademark laws should not be used to impinge the First Amendment rights of critics and commentators”.

Citing the review in part:

Building on three prior Circuit Court cases holdings that “artistic or political use of a trademark” and “literary titles” do not violate the Lanham Act “so long as the level of relevance to the underlying work is merely . . . above zero,” the EFF and the ACLU argue that Radiance’s use of the term “NAACP” in an article title was not infringing on a confusion theory.

The brief reasons that “Radiance’s use of NAACP’s trademark in the title of an article was directly relevant to the article’s political goal and did not explicitly mislead as to the source or content of the article .”

The EFF and the ACLU then argues that Radiance’s use of the term “NAACP” in an article title was not trademark dilution because it was a “noncommercial use” defined in 15 U.S.C. § 1125(c)(3) and thus exempted from Lanham Act action. Citing previous court decisions, the brief explained that the trademark dilution cause of action is limited to commercial advertising and excludes fully protected speech in newspapers, magazines, films, songs and similar media. Thus Radiance’s use of the NAACP’s trademark to criticize the practices of the organization and to comment on how abortion affects the African-American community is exempted under 15 U.S.C. § 1125(c)(3)(A)(ii).

“No trademark law overrides the First Amendment freedom to comment upon the positions, policies and activities of groups like the NAACP. This type of speech has a very long history of protection,” said Charles M. Allen with the law firm Goodman, Allen, & Filetti and one of nearly 2,500 private attorneys allied with ADF. “The Radiance Foundation merely expressed its opinion of the NAACP’s activities in an article. The NAACP cannot use trademark law to shield itself from criticism by denying others the right to use its name when they are expressing their opinions.”

“I believe this trial in life will have a happy ending. Our hope is that truth and justice prevail and that our guaranteed, precious right to free speech is protected. Even more importantly, we hope that so-called “leaders” in the civil rights movement have their consciences awakened to realize no right is more valuable and in need of defense than the foundational Right to Life,” Bomberger said.

Will free speech prevail?

We will soon see as the case is now before three justices at the Fourth Circuit. Oral arguments will be heard Wednesday, March 25th.