Anti-Gay Social Security Ad Enjoined

Federal court blocks USA Next ad linking AARP to gay marriage

A federal court has issued a temporary restraining order against publication of an advertisement that uses a picture of two men kissing each other as part of an attack on the American Association of Retired Persons (AARP) that alleges that the group supports gay marriage.

When USA Next, a right-wing advocacy group, was putting together an advertisement critical of the AARP for its opposition to the Bush administration’s battle to make savings accounts an integral part of the Social Security system, decided to illustrate its argument with two pictures. One showed an American soldier in uniform superimposed with a red X, the other a photograph of Steve Hansen and Richard Raymen kissing, with a green check mark on it. The thrust of the ad was that AARP does not support U.S. troops in Iraq but favors same-sex marriage.

Media outlets including The New York Times have reported that USA Next hired several of the key players in crafting the Swift Boat Veterans for Truth ads launched against Sen. John Kerry in last year’s presidential campaign.

USA Next obtained the picture of Hansen and Raymen from the Web site of the Portland Tribune, an Oregon newspaper that used the picture on March 3, 2004 to illustrate a story about same-sex marriage that had temporarily been authorized in Multnomah County. The two men were waiting to be married at Portland City Hall when a news photographer snapped their picture. USA Next did not ask either the Tribune or the two men for permission to use their picture, and a later attempt to buy permission from the newspaper was rebuffed.

The advertisement ran on the Web site of the American Spectator for a week, when it was pulled as a result of protests and Raymen and Hansen’s lawsuit. While posted, it attracted sufficient attention that copies of it were widely dispersed on the Internet and reproduced in television and newspaper reports.

Raymen and Hansen sued USA Next in the U.S. District Court in Washington, D.C., the defendant’s base of operations, asserting four legal claims—libel, false light invasion of privacy, invasion of privacy by appropriation of likeness and intentional infliction of emotional distress. The men sought a permanent injunction against further publication of their picture and monetary damages, and filed an immediate motion with the court for a temporary restraining order pending the trial of their case.

District Judge Reggie Walton granted the temporary order from the bench on March 10, and then published his written opinion on March 16.

Walton, appointed by Pres. George W. Bush in 2001, analyzed the request for temporary relief by focusing on the claim of invasion of privacy by appropriation of likeness. In many states, the law has developed to protect the right of individuals to their own image, at least to the extent of allowing individuals a veto over the use of their image for commercial purposes. In New York, this right is protected by a provision of the state’s Civil Rights Law. Raymen and Hansen claimed that USA Next had wrongfully appropriated their image for its own propaganda purposes and Walton found that Oregon courts have adopted the proposal by the American Law Institute for a “common law” appropriation claim.

“One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy,” wrote Walton, quoting from an Oregon decision. The exception is for non-commercial use, or to illustrate a newsworthy article.

Walton found that neither exception applied to this case. The ad campaign was intended, incidentally, to raise money for USA Next’s campaign against the AARP, Walton noted, pointing out that when the ad appeared online, one could click a link directly to a promotional screen about USA Next which solicited donations.

“In addition,” wrote Walton, while the newsworthy exception would clearly apply to the Tribune’s use of the photograph, it can hardly be said that the use of the photograph in the advertisement is reporting on a newsworthy event.”

Walton also found that the necessary elements to support a temporary restraining order were all present, including that the men would suffer irreparable harm from continued publication of the advertisement.

“While the defendants note that the photograph of the plaintiffs appeared in the newspaper and was available for purchase on the newspaper’s computer website without their objections, this does not defeat their right to injunctive relief,” wrote Walton. “This is particularly true in this case where the plaintiffs’ images were used not only without their permission, but also for a purpose inconsistent with their perspectives on the subject (gay relationships) reflected in the photograph misappropriated by the defendants. In other words, the use of the plaintiffs’ images to condemn a view they actually support as portrayed in the misappropriated photograph amounts to irreparable harm.”

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