We win!!! The Fourth 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 by accurately calling them the National Association for the Abortion of Colored People. The NAACP tried to crush our right to free speech but truth and justice prevailed. Read the ruling here.
During the day of oral arguments, the NAACP contended that our news article, which parodied the NAACP’s name, is not news, social or political commentary. Senior Judge Andre M. Davis, Judge J. Harvie Wilkinson, and Judge Pamela Harris asked questions to clarify issues, made statements, and ultimately will decide whether our news commentary (which is merely one of over a hundred news articles) is protected by the First Amendment. The NAACP’s entire case was based on lies, but their main argument before this court was that we had a button directly linking to the “sale of billboards and licensing of the artwork”. There was no such button on any of our news articles on this website.
The Radiance Foundation v NAACP will now be heard March 24th-26th, 2015 by the Fourth Circuit Court of Appeals in Richmond, VA. This is the last step before the Supreme Court. Oral arguments will be heard on March 25th.
The ACLU of Virginia and the Electronic Frontier Foundation file an amicus brief on behalf of The Radiance Foundation’s First Amendment rights to criticize an organization through parody. The EFF is the “the leading nonprofit organization defending civil liberties in the digital world.” The brief was produced by the First Amendment Amicus Brief Clinic out of UCLA School of Law, led by renown First Amendment advocate Professor Eugene Volokh. Read here. PDF of amicus brief here.
The NAACP files a countersuit, playing semantics with “right to choose” and denying much documented evidence of their abortion advocacy and official abortion policy: “On the issue of abortion, NAACP has not supported abortion but rather supports a woman’s right to choose. NAACP’s decision not to support abortion has been influenced at least in part by the strong religious values and beliefs held by many of those in its leadership, including leading members of the clergy from across the United States.” The NAACP was emphatic (and dishonest) about not taking a position on abortion and further claimed in the countersuit: “Counterdefendants’ unauthorized use of the NAACP Marks, together with the name The National Association for the Abortion of Colored People, is likely to tarnish and disparage NAACP and thereby damage its reputation among members of the general public of the United States, particularly African Americans and other people of color, by falsely indicating or suggesting that NAACP is ‘pro-abortion’ when in fact it is not.” By the way, during this whole case one of their clergy in leadership, NAACP Board Member William Barber III received Planned Parenthood’s “Care. No Matter What.” award for his abortion advocacy on behalf of the NAACP. The NAACP president, Benjamin Jealous, also headlined a fundraising event for Planned Parenthood which charged $1000 per ticket for a Margaret Sanger Circle Ticket.
After writing an article entitled, “The National Association for the Abortion of Colored People”–a phrase Ryan Bomberger has used for several years to describe the NAACP–the leftist organization threatens Radiance and Ryan, personally, with a lawsuit. In the Cease and Desist letter, NAACP in-house lawyers threatened to sue us for “tarnishing” their name through the parody and invoked the Lanham Act. Abusing trademark law to censor free speech was the basis of their attack. We refused to comply with their demands to remove all references to NAACP, any of its marks, or the parody from our website or third-party websites. So, we reached out to Alliance Defending Freedom to fight for our civil rights. We filed a Declaratory Action to ask the judge to dismiss this legal threat on the basis that we were easily within our First Amendment rights to use parody to criticize the NAACP’s radical pro-abortion position.
Abortion doesn’t advance colored people. And since we’re all colored people, killing our Posterity doesn’t advance any community. Abortion is a violent injustice that, like slavery, requires that we accept the lie that some human beings aren’t as equal as others. The NAACP (which inaccurately goes by the National Association for the Advancement of Colored People) believes and promotes the lie. Since February 2013, the nation’s oldest civil rights group has hundreds of thousands of dollars suing The Radiance Foundation and me, personally, for what it charges as “trademark infringement, confusion and dilution.” This so-called infringement included The Radiance Foundation’s news articles that detailed the NAACP pro-abortion actions, suggesting a name more befitting of the abortion-pushing organization: The National Association for the Abortion of Colored People. Apparently, truth and parodying an organization’s name are not protected under the First Amendment.
We filed a declaratory action because the NAACP threatened to sue us (read their Cease and Desist letter), including monetary “damages”, for this bogus “trademark infringement”. Our suit simply asked the judge to dismiss this legal threat on the basis that it was our First Amendment right to criticize the NAACP’s abortion advocacy through parody/satire in news commentary. That request was denied.
The irony in this is rich. Rush Limbaugh has parodied the NAACP’s name since Clarence Thomas’s Supreme Court confirmation, claiming that the organization is only concerned about the advancement of a certain kind of folk–liberal colored people. He continues to use the parody any time he speaks of the leftist organization. However, the NAACP isn’t suing a wealthy white broadcaster (who has an audience of millions every single day) for causing “confusion” of their brand. They’ve chosen, instead, to sue a black man, with far less means for daring to call them out. Is this yet another example of black-on-black crime?
In federal court, the once great civil rights group convinced Judge Raymond Jackson to disregard our civil rights as well as all of the documentation proving how radically pro-abortion the NAACP has become. The judge ruled against The Radiance Foundation, declaring that the parody we employed isn’t, technically, a parody because he didn’t find it to be “funny”. So, he banned us from even mentioning the parodied name or ever parodying the NAACP’s name in the future. Contradicting all presented evidence, Judge Raymond Jackson declared “the NAACP has no formal position or policy regarding abortion” despite the fact that the NAACP itself declared, in its own press release, that it “took an historic pro-choice position” back on February 24, 2004. (Download and read the outrageous Opinion and Order and the Permanent Injunction Ruling.)
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”. Never let it be confused that the organization, which historically fought for the most disenfranchised among us, actually supports the March for Life that brings hundreds of thousands of prolife advocates to the nation’s capital each year to be educated and motivated to fight the social injustice of abortion. The NAACP resolution proudly supported the National Organization for Women (NOW), Planned Parenthood and NARAL radical abortion march on DC. (It was originally named the “March Against Fear” but renamed to the “March for Women’s Lives”.) This unapologetically pro-abortion event was originally pushed by NOW because Congress had passed the Partial Birth Abortion Ban. So the NAACP’s public foray into advocating for abortion was to demand what most Americans consider the most heinous and most violent form of abortion–partially birthing a child, then (for no medical reason) severing the child’s head from its body or crushing the skull and sucking the child’s brains out and dismembering the rest of the child, piece by piece.
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.
Sixty percent of viable black pregnancies are aborted in New York City, the home of NARAL and Planned Parenthood. As highlighted in our TooManyAborted.com initiative, more black babies are aborted in New York City than are born alive: 1,223 black babies are aborted for every 1,000 born alive. Yet the NAACP has officially endorsed Governor Cuomo’s radical pro-Gosnell “Women’s Equality Act” that would eliminate all restrictions on abortion in a state that already aborts over 100,000 per year through the 249 abortion facilities in the state.
Over the years, The Radiance Foundation has published numerous articles on various news sites (all of which Judge Jackson ordered destroyed on our sites) about the NAACP’s pro-abortion actions. We’ve pointed out that Planned Parenthood co-sponsors the NAACP’s annual conventions and how the NAACP has shown its support of the nation’s largest abortion chain by frequently defending it. So, we satirically referred to the organization with a name more befitting of their pro-abortion advocacy. We were prohibited by Judge Raymond Jackson of the U.S. District Court in Norfolk, VA to speak or write, not only of the parody that we’ve used to describe the actions of the NAACP, but to ever parody the NAACP in the future. We were ordered to destroy everything we’ve ever created that mentions the NAACP or any of their marks in addition to the parodied name. We had to destroy all online posts including FB and Twitter invoking the organization’s name. It was painstaking and a brutal exercise in judicial overreach.
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. This lawsuit is nothing more than a multi-million dollar organization’s attempt to bully someone who’s simply telling the truth. Our inner-cities are crumbling, two-parent married families barely exist, 72.3 percent of black children are born into homes without fathers, and the NAACP wants to silence us for pointing out its documented support of the killing of over 16 million black lives since Roe.
We are deeply grateful for Alliance Defending Freedom and that Chuck Allen, an ADF-affiliated attorney, devoted his time and incredible expertise to defend our civil rights. Truth and Justice prevailed; the NAACP lost. The once great civil rights organization can continue to think it fools the public with its duplicity. We’ll keep on exposing them. Our hope is 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.
Alliance Defending Freedom allied attorney Charles M. Allen with the Glen Allen, Va. firm Goodman, Allen & Filetti PLLC successfully defended Bomberger and Radiance in The Radiance Foundation v. National Association for the Advancement of Colored People.