Yes, the First Amendment allows the use of school photos to further core political speech, including candidates for public office and recalls of those candidates. Any copyright claim would seemingly be overcome by the defense of fair use. Any trademark claim would not be supported by any confusion as to whether the district was authorizing the political speech.
What did John Ortega claim about the use of school pictures by political campaigns?
At the Orange Unified School District (“OUSD”) Board of Education meeting on January 18, 2024, OUSD Trustee John Ortega referred to certain flyers related to the Yes on Recall campaign that contained “school photos.” He stated: “That is completely inappropriate spreading misinformation about OUSD sponsoring such a thing,” and said, “We are looking at this from a legal perspective.” Orange Unified School District, OUSD School Board Meeting – January 18, 2024, at 3:36:56–3:38:50, Youtube (Jan. 18, 2024).
What’s the issue?
Trustee John Ortega mentioned a social media flier with a picture of Villa Park Elementary. Below is an example from the Yes on Recall Facebook page of such a posting made by the Yes on Recall that Mr. Ortega may have been referring to.
What does the First Amendment Coalition think about Mr. Ortega’s views on the First Amendment?
The First Amendment Coalition concluded that Mr. Ortega’s veiled threats of legal action against core political speech undermine the First Amendment and attack the foundation of democracy. A “major purpose” of the First Amendment is “to protect the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Therefore, the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” FEC v. Ted Cruz for Senate, 142 S. Ct. 1638, 1650 (2022) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).
The First Amendment Coalition issued a letter to Mr. Ortega concluding that: “No reasonable person would perceive that OUSD is taking a position on the recall campaign merely because a flyer supporting the recall includes an image of a school building or its logo. If a political advertisement contained an image of the White House, Capitol, or Supreme Court, no reasonable person would believe that the federal government approved the advertisement. The same is true for OUSD. In addition, I understand the flyers were largely identified as being on behalf of concerned ‘parents’ or ‘families’ of students, or ‘friends’ of the schools in question, making it abundantly clear that they do not purport to speak on behalf of OUSD.”
The letter from the First Amendment Coalition went on to explain that:
It is not clear that OUSD can possess a protectable copyright interest in school building logos or images, but even if it could, the use of such logos or images for political advocacy would be protected as fair use. See NRA of Am. v. Handgun Control Fed’n of Ohio, 15 F.3d 559, 562 (6th Cir. 1994); City of Inglewood v. Teixeira, No. CV-15-01815, 2015 U.S. Dist. LEXIS 114539, at *8–34 (C.D. Cal. Aug. 20, 2015); County of Santa Clara v. Superior Ct., 170 Cal. App. 4th 1301, 1331–33 (2009).
It is also not clear that OUSD possesses any trademark rights over school logos or images, but even if it did, no such right was infringed or diluted because no reasonable person would be confused about the source or origin of the flyers’ message and the flyers are political rather than commercial. See Wash. State Republican Party v. Wash. State Grange, 676 F.3d 784, 795 (9th Cir. 2012); Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 900–07 (9th Cir. 2002); MasterCard Int’l Inc. v. Nader 2000 Primary Comm., Inc., No. 00 Civ. 6068, 2004 U.S. Dist. LEXIS 3644, at *5–15, *22–28 (S.D.N.Y. Mar. 8, 2004); Am. Fam. Life Ins. Co. v. Hagan, 266 F. Supp. 2d 682, 689–701 (N.D. Ohio 2002).
OUSD Facts Truth-o-Meter: False as to John Ortega
John Ortega’s claim that there would be any basis to “look[] at this from a legal perspective” when pictures of schools are used by political campaigns is false. We do not believe that any attorney would have spent more than a few minutes realizing that Mr. Ortega’s argument had no legal standing. We have been provided with no information that any legal resources were used to look into this claim.
