Appeals court rules against NAACP in abortion free speech lawsuit

An appeals court has ruled in favor of a Black pro-life organization which parodied the NAACP to expose their stance on abortion.

“WE WIN!!!!” those are the words of Ryan Bomberger founder of the Radiance Foundation regarding his free speech lawsuit filed by the NAACP.

“4th Circuit Court of Appeals rules, unanimously, in our favor! This is a huge win for the First Amendment. The NAACP tried to crush our right to free speech but truth and justice prevailed,” Bomberger posted today.

The lawsuit, initially filed by the National Association for the Advancement of Colored People, better known by its acronym “NAACP” against Bomberger began after The Radiance Foundation, an organization Bomberger co-founded, published an article online entitled “NAACP: National Association for the Abortion of Colored People” which criticized the NAACP’s stance on abortion.

The Radiance Foundation is a nonprofit organization focused on educating and influencing the public about issues impacting society. Radiance addresses social issues from a Christian perspective. It uses as its platform two websites, TheRadianceFoundation.org and TooManyAborted.com, where it posts articles on topics such as race relations, diversity, fatherlessness, and the impact of abortion on the black community.

The article, “NAACP: National Association for the Abortion of Colored People,” was posted by Radiance, and then picked up by Life News, exposing the NAACP’s ties to Planned Parenthood.

Shortly after the NAACP began to receive criticism for its position on abortion.

Though the NAACP has often claimed to be neutral on abortion, Radiance maintains that the NAACP’s actions actually demonstrate support for the practice.

According to Life News, following the piece, the NAACP sent Bomberger, the Chief Creative Officer of the Radiance Foundation, and LifeNews a threatening letter claiming infringement on its name and logo for including it in the opinion column.

The letter, accused Bomberger and the Radiance Foundation, of “trademark infringement” and stated that while “you are certainly entitled to express your viewpoint, you cannot do so in connection with a name that infringes on the NAACP’s rights.”

A court then 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, represented by Alliance Defending Freedom (ADF) , then filed a declaratory judgment action in federal court, and in return, the NAACP 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.”

After a bench trial, the district court found for the NAACP on all counterclaims and denied declaratory relief to Radiance. The district court issued a permanent injunction “against any use [by Radiance] of ‘National Association for the Abortion of Colored People’ that creates a likelihood of confusion or dilution. However, it declined to award any damages or attorney’s fees, as it found the NAACP had failed to make the case that they were warranted.

In the latest decision, the 4th Circuit Court of Appeals found that the NAACP does not have actionable claims for trademark infringement here, and Radiance’s use of the NAACP’s marks falls squarely within the exceptions to trademark dilution specifically included in the Lanham Act to avoid encroaching on free speech rights.

“In the context of trademark infringement, the Lanham Act’s purpose, as noted, is to protect consumers from misleading uses of marks by competitors,” the decision states.

The decision also points out that a trademark “only gives the right to prohibit the use of it so far as to protect the owner’s good
will against the sale of another’s product as his.”

NAACP had held that because Radiance had a donate button on their website they were using the image for goods and services.

But, the appeals court wrote, “When the “use of the trademark does not imply sponsorship or endorsement of the product because the mark is used only to describe the thing, rather than to identify its source,” restricting speech does not serve the purpose of the Lanham Act.

“Indeed, criticism or parody of a mark holder would be difficult indeed without using the mark. Trademark protections exist neither to allow companies to protect themselves from criticism nor to permit them to “control language.”

In finding that Radiance’s use of the NAACP’s marks was “in connection with” goods or services, the appeals court ruled that the district court erred in several respects, pointing out that Radiance used the NAACP’s marks only in the title and body of an article criticizing the NAACP.

The Appeals Court Wrote:

Although present on the article page, the Donate button was off to the side and did not itself use the NAACP’s marks in any way. The billboard campaign was displayed on a different page altogether. A visitor likely would not perceive the use of the NAACP’s marks in the article as being in connection with those transactional components of the website. It is important not to lose perspective. The article was just one piece of each Radiance website’s content, which was comprised of articles, videos, and multimedia advocacy materials. That the protected marks appear somewhere in the content of a website that includes transactional components is not alone enough to satisfy the “in connection with” element. To say it was would come too close to an absolute rule that any social issues commentary with any transactional component in the neighborhood enhanced the commentator’s risk of Lanham Act liability.

The court addressed the issue of “confusion” that the Radiance parody of the NAACP caused as one over policy and not over goods, when it wrote, “trademark infringement is not designed to protect mark holders from consumer confusion about their positions on political or social issues. The evidence of “actual confusion” relied on by the district court consisted of phone calls to the NAACP by people who took issue with the NAACP supporting abortion. “[I]ndignation is not confusion,” at least not as pertains to trademark infringement, and at best the calls demonstrated confusion as to the NAACP’s policy positions rather than any good or service. Policy stances are neither goods nor services, though the means of conveying them may be.”

The appeals court continued, “it is not immediately apparent how someone would confuse an article which is strongly critical of an organization with the organization itself. The mark in this case was used primarily to identify the NAACP as the object of Radiance’s criticism, resembling a descriptive or nominative fair use albeit by employing a modified version of the name.”

As for the free speech aspects of Radiance’s parody of the NAACP the court writes:

Whatever the label affixed to the article, Radiance’s twist on the famous moniker follows in the same vein as articles that refer to the NRA as the “National Republican Association” or the ACLU as the “Anti-Christian Lawyers Union.”

Radiance’s ploy was nonetheless effective at conveying sharply what it was that Radiance wished to say. The implications for the likelihood of confusion factors are thus obvious: parody or satire or critical opinion generally may be more effective if the mark is strong and the satirical or critical version is similar to the original. The critical message conveyed by the satirical mark itself and in the commentary that follows ensures that no confusion about the source of the commentary will last, if in fact it is generated at all.

In this case, the title related to and conveyed the subject of the article: the NAACP and Radiance’s views of its alleged stance on abortion. The use of the satirical modification of the true NAACP name was designed, as many titles are, to be eye-catching and provocative in a manner that induces the reader to continue on. We cannot find that use of the NAACP marks in the title of the Radiance article created a likelihood of confusion as to the piece’s authorship or affiliation.

The court then ruled in favor of Radiance writing, “In sum, and for the aforementioned reasons, the plaintiff’s expression in no way infringed upon or diluted defendant’s trademark rights. We hereby vacate the district court’s injunction and remand with directions that the defendant’s Lanham Act counterclaims be dismissed.”

Ryan Bomberger says that now that the legal wranglings are over, he plans to continue to call the NAACP out on their stance regarding abortion.

“What an upside down world,” Ryan Bomberger told Life Dynamics in response to the decision.

“In 2015 it’s radical to believe that every human life has purpose, and that we’re all equal. Along the way, the NAACP stopped believing this which would explain why they would spend over half a million suing us for accurately parodying their name: The National Association for the Abortion of Colored People. The U.S. 4th Circuit stopped that assault of the First Amendment and ruled in our favor. Not only will we continue to parody the NAACP’s name, we’ll continue relentlessly calling them out for supporting the violence of abortion and (the abject failure of) liberalism.”

Read the decision here.

“We are incredibly grateful to ADF and our attorney, Chuck Allen, for defending what the NAACP claims to protect: our most basic civil rights,” Bomberger added.

In the documentary film, Maafa21, Life Dynamics also discusses the NAACP’s attitudes on abortion detailing how the organization tried to hide and prevent their convention goers from hearing about the abortion connection to black genocide.

One witness interviewed in the film states that ironically, the NAACP even went to the extent of using buses to block their demonstrations about black genocide in front of Cobal Hall.

Watch Maafa21 here.