An obnoxious campaign mailer targeting two Republican candidates with a lurid message about gay rights qualifies for protection under the First Amendment, a federal judge ruled Tuesday. And Judge Wiley Daniel makes a compelling case.
The mailer featured a doctored photo of a gay couple in New Jersey kissing, along with sneering messages denouncing the candidates. Defendants responsible for this trash included Dudley Brown of Rocky Mountain Gun Owners.
But the nature of the message doesn’t detract from the fact that it was, as the judge explained, both non-commercial and related to a matter of public concern. As a result, the couple’s claim that the defendants made unauthorized use of an engagement photo doesn’t hold up.
The judge did rule, however, that the plaintiffs “have stated a plausible copyright infringement claim under the Copyright Act,” and that element of the case will proceed.
Political advertising is often so ugly that the public instinct is to clamp down on it. But that would be a greater mistake.
