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Law now clarifies use of photos in political ads

As an unintended consequence of last year’s Car Tax Revolt, the General Assembly has approved, and the governor has signed, an amendment to state law allowing use of an individual’s photograph and name without their approval in certain advertisements.

Last week, Beacon Communications and the Rhode Island Press Association sought dismissal without prejudice of the case brought on their behalf by the Rhode Island American Civil Liberties Union in the Federal District Court asking for a ruling that the law violated the First Amendment of the Constitution.

The issue over the use of photographs and names in advertising arose a year ago in the heat of the controversy over the mayor’s and City Council action to eliminate $5,500 of the $6,000 motor vehicle value exemption. That action was after the state ceased reimbursing municipalities for lost motor vehicle revenues. Eliminating $5,500 of the exemption resulted in about $8 million in new tax revenues for the city.

Rob Cote, who led the Car Tax Revolt, ran advertisements in the Warwick Beacon calling for the ouster of the mayor and those council members that voted to eliminate the exemption.

Soon after the ads appeared, City Council President Bruce Place questioned how the newspaper could use his name and photograph in the ad. He based his argument on legislation that prohibits use of an individual’s name and photo without their approval for commercial purposes. Place’s point was that the Beacon commercially benefited from the advertisement and therefore was subject to the law.

The newspaper continued to run the advertisements. However, the Beacon made it clear the Car Tax Revolt was paying for the ads. Feeling that the state law was in violation of the First Amendment when applied to political ads, or to ads that groups run to express their views of officials, the newspaper contacted Steve Brown at the Rhode Island ACLU.

Brown agreed, and while Place did not pursue action; Brown felt that, if left uncontested, the law could have a “chilling effect,” causing people to think twice when publicly questioning officials. The press association joined with the paper in seeking a declaratory relief from the court that the law is unconstitutional.

Mark Freel, of Edwards Wildman Palmer LLP, handled the case pro bono.

Earlier this year, Freel and representatives of the Attorney General met in conference with Federal District Judge Will Smith. Smith urged the AG’s office to issue an opinion that would define the extent of the existing law.

The feeling of the paper and the ACLU was that an opinion from the AG would be less preferable than a ruling from the court. However, to pursue that avenue would consume considerable time on the part of the court, and the state that would be faced with defending the law.

Changing the law offered eliminating the cost of a court battle, and a definitive answer on the matter of using the names and photographs of public officials in advertisements.

In its suit, Beacon Communications and the press association argued 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.

State Senator Michael McCaffrey of Warwick introduced legislation, with a companion bill in the House by Rep. Joseph McNamara of Warwick, to amend the statute. No opposition was voiced in Senate and House Judiciary Committee hearings on the legislation.

“It is gratifying that the General Assembly has chosen to address the flaws in the statute in a way that protects legitimate privacy interests in the commercial context while also protecting free speech and issue advocacy where matters of public concern are at stake,” said Freel. “While we believed strongly in our constitutional challenge to the statute as previously worded, this amendment to the legislation saves everyone from the time and expense of litigation and is a victory for free speech and open debate.”

Brown also congratulated legislators for their action.

“The ACLU commends Senator McCaffrey and Representative McNamara for their work in getting this legislation passed,” said Brown. “The rights of Warwick residents to engage in political speech are now much better protected, and the bill's revisions to a clearly unconstitutional law have also saved taxpayers thousands of dollars in court costs.”

Cote called the change in the law “common sense.”

“The First Amendment allows for people to object to different points of view,” he said. “It’s political speech, we see negative political ads all over the place.”

Mark Murphy, editor of the Providence Business News and president of the press association, applauded the passage of the bill.


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