Another victory this week for outrageousness in advertising: the Illinois Supreme Court ruled Thursday that a controversial ad that ran in the Sun-Times last fall did not meet standards for defamation and should be protected under the First Amendment.
The ad, paid for by the Chicago clothing retailer Cosmo’s Designer Direct, appears to contain veiled references to the store’s main competitor, Imperial Apparel, accusing the store of selling “cheap imitations” of Cosmo’s well-known 3-for-1 sale. The ad also includes language that could be construed as anti-Semitic:
“WARNING! Beware of
Cheap Imitations Up North …
We all know, there is only
one ‘America’ in the world
and only one ‘3 for 1′ in the
Midwest. […] So to the shameless
owners of Empire rags cen-
ter, east Eden and south of
quality, we say…’Start being
kosher…Stop openly copying
and coveting your neighbor’s
concepts or a hail storm of
frozen matzo balls shall del-
uge your ‘flea market style
warehouse.’ […]
It is laughable how with all
the integrity of the ‘Iraq
Information Minister’, they
brazenly attempt pulling
polyester over your eyes by
conjuring up a low rent
3 for imitation that has the
transparency of a hookers
come on…but no matter
how they inflate prices and compromise quality, much to
their dismay, Cy and his son
Paul the plagiarist still remain
light years away from
delivering anything close to
our ‘3 for 1′ values. […]”
Imperial’s owners claimed that several people who saw the ad called the store to ask them about it, and the business suffered financially because of the negative exposure.
The Court ruled that the ad contained no direct fact-based statements and that a “reasonable reader” would not automatically understand it to be an attack on Imperial.
If this case sounds familiar, it could be because it resembles (a watered-down version of) the facts behind New York Times v. Sullivan Supreme Court decision, in which the Times was exonerated for running an ad attacking (but not naming) a Montgomery police chief during the 1960s civil rights movement.
Both cases reinforced the legitimacy of public criticism through advertising, a notion first debated in the Hustler Magazine v. Falwell case, in which the Court ruled that statements that cannot “reasonably [be] interpreted as stating actual facts” are protected under the First Amendment.
