19

Advertisers don't want their product/company associated with certain people/content. Which is why a lot of ads don't play on more controversial content (e.g. demonetized videos on Youtube).

But what if someone unsavory, against the wishes of a company, endorses their product? E.g. if some prominent Neo-Nazi bigot said "I love Arby's! They're the best burger, Nazi-approved!" Their endorsement can conceivably hurt the company. It's almost like defemation. The company isn't directly being stated to support certain views/people, but they are being implicated to.

As a more direct case, maybe the prominent Neo-Nazi bigot is constantly seen frequenting Arby's, leading to people protesting/boycotting Arby's.

My question is, does the company have any legal action they can reasonably take against the unsavory person? Or is the best they can do simply to try to save their own image by putting out statements and donating to causes, etc.?

1
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    Commented Mar 9 at 2:55

6 Answers 6

34

My question is, does the company have any legal action they can reasonably take against the unsavory person?

No. Free speech entitles someone to endorse anything they want. Defamation is an exception to free speech because it applies to false statements. But a sincere endorsement of an unsavory person, in addition to being a matter of opinion that is neither true or false in many cases, is not false.

Or is the best they can do simply to try to save their own image by putting out statements and donating to causes, etc.?

Yes.

6
  • 1
    Yup. See generally, The First Amendment.
    – bdb484
    Commented Feb 13 at 22:24
  • 5
    The question is tagged "defamation" -- defamation is usually regarded to be an approved exception to free speech. Your answer would be improved by additional information about why defamation does not apply here.
    – R.M.
    Commented Feb 14 at 15:30
  • Would it be defamation if the endorsement was a lie? E.g. Nazi is ambivalent about Arby's, but makes a false statement that they love Arby's, causing damage to Arby's.
    – interfect
    Commented Feb 14 at 21:08
  • 3
    @interfect Probably not in U.S. law, because opinions are not actionable in defamation actions, and "I love Arby's" is an opinion.
    – ohwilleke
    Commented Feb 14 at 21:11
  • With donations to politicians and non-profits, they will often publicly re-donate that money to a cause that opposes the unsavory donor. Doesn't apply as much to for-profit companies, though, since they don't get monetary donations. They may still make such a donation as a "see, we don't like them" action, but it's not action against the endorser.
    – Bobson
    Commented Feb 15 at 15:15
13

Not directly, but in the situation you describe, there are a number of secondary options:

  • The restaurant can refuse service to anyone for any reason that is not discriminatory against a protected class or otherwise contrary to law. "Nazi" is not a protected class in the United States, or anywhere in the world (that I'm aware of). If the disfavored person refuses to leave, the restaurant can contact the police and have them removed.
    • Note that some disfavored groups are considered protected classes. In the US, it is unlawful to discriminate on the basis of race, sex, religion, (skin) color, national origin, or disability, and "sex discrimination" has been interpreted to include discrimination based on sexual orientation and gender identity. If the disfavored person is disfavored on the basis of their membership in one of these groups, then the restaurant cannot refuse service to them for that reason.
  • In some jurisdictions (e.g. , but not the United States), publicly identifying as a Nazi, wearing Nazi regalia, or otherwise "glorifying" the Nazi movement are considered crimes. In those jurisdictions, the restaurant can call the police and have the Nazis arrested simply for appearing in public as Nazis. Most other disfavored groups are not specifically outlawed, so this only works on Nazis, Neo-Nazis, and similar groups.
    • In the US, hate speech, including Nazi speech, is usually protected speech, and so the police cannot arrest Nazis just for identifying as Nazis.
  • If the unsavory person says or does anything which implies or directly states that the restaurant has endorsed them or their political beliefs, the restaurant probably has some sort of trademark-based remedy to prevent statements along those lines. Absent that, the restaurant can publicly disavow the disfavored person or group.
3
  • I would be surprised if they could use trademark protection in this context.
    – jcaron
    Commented Feb 15 at 14:28
  • 3
    I believe what's typically done in this case is for the company to very publicly support something the unsavory party finds anathema. That leaves Dr. Unsavory the choice of tying themselves indirectly to that thing as well, or ceasing their public endorsements.
    – T.E.D.
    Commented Feb 15 at 15:37
  • 2
    Your last point is, at least in the US, probably the most relevant. I would expect that in many cases, the makers of e.g. Bob's Beer could demand that any advertising material from Paul's Pornos that would suggest "Nothing could be finer after a hard day's work than relaxing on the couch with Bob's Beer and Paul's Pornos" must disclaim any association with the beverage sufficiently conspicuously that no reasonable reader or reader could wrongly infer that a voluntary association exists.
    – supercat
    Commented Feb 15 at 20:54
7

As a more direct case, maybe the prominent Neo-Nazi bigot is constantly seen frequenting Arby's, leading to people protesting/boycotting Arby's.

In this particular scenario, the retailer can ban the person from entering their stores. That's because a belief in Nazism fails the fifth element of the Grainger test:

It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Accordingly, Nazism isn't a protected characteristic under Section 4 of the Equality Act 2010 and so discriminating against a Nazism believer isn't unlawful.

However, if we change the example to something which is a protected characteristic but nonetheless controversial then banning the person from the store could amount to unlawful discrimination. For example, banning a person because they hold gender-critical feminist views would be unlawful discrimination.

0

In the United States, Bad Person A Endorses Good Person B is perfectly legal so long as the endorsement sentiments are pointed in the correct direction. Good Company B has options to deal with the potential bad press, though.

  • They can sue, because you can try to bring civil suit to anyone for almost anything, however if Bad Person A has been playing by the rules then a competent legal defense will invoke the First Amendment and either squash them in court or settle favorably outside. If A lacks the resources to withstand a lawsuit, this could convince them to stop just to avoid the trouble, but otherwise B has much better options.
  • They can refuse service to A, and they can make a big deal about why they've done so. Depending on the business model they work with, this could be difficult to enforce, but as other answers have mentioned, this will at minimum keep them away from their businesses with trespassing laws (unwanted/unlawful physical presence on their property) and/or similar laws against fraudulent business (misrepresenting identity to trick B into business with a person they expressly refused to deal with).
  • B can fight back with a PR effort of their own if A is trying to associate themself publicly with B: "A is not welcome at our establishments" - and in most cases, they'll win this battle. Company B is allowed to advertise what their terms of business are, and if one of those terms is not letting A buy their t-shirt cannons since A supports executing puppies and kittens, too bad for A. Keep in mind that this can be a double-edged sword, though, since even though an established company will usually have more influence on public opinion than a bad individual or interest group, this will also consequently bring the bad agent some more notoriety and attention.
  • Inversely, they can ignore A's gesturing, which has the advantage of avoiding legitimizing A and giving them any attention (which in many cases will be A's actual motivation for endorsing B). However, this can backfire if the public starts to put too much stock into B's association with A.

This type of pattern is actually sometimes observed in real life as a symptom of the "all publicity is good publicity" attitude that some unsavory agents espouse. Fortunately, in order to use this principle, A has to walk a thin line.

For starters, 'Bad Person A likes Good Company B' is just A's truthful (and protected) opinion about B; however, the converse statement is defamatory since it is untrue and (measurably, with good lawyers) harmful. Without going into all the details, under U.S. law, a statement like that checks all the boxes for burden of proof in a defamation case: it's false, published, harmful, and not privileged. A could try to toe the line with regards to what exactly they say, but this is dangerous because B can threaten to take them to court if anything A says is borderline, and as mentioned above, this is usually a potent threat.

Additionally, A has a much harder time maneuvering to defend themself than B does. The public already generally dislikes B, so they're probably not gaining much favor by trying to drag some random company down with them. B also usually has a lot of truth and evidence on their side, which most of the time helps them tremendously since A has no power to actually dispute anything B says without risking a lawsuit. For example, if A says they worked at company B to try and smear B's reputation, then B can just go through their records and reveal any facts that might help distance themselves from A's unsavory behaviour, à la:

It is true that A worked here, but only for 3 weeks in the summer of 1995. A was fired for making other employees uncomfortable and trying to kill the squirrels in the parking lot.

-1

I know nothing about Arby's, in this answer I will assume that in the case in question Arby's actually has no connection with the unsavory person.

As stated by other answers this is not a case of defamation. The only ways for Arby's to reply risk to expose Arby's themselves to legal actions, but they would be action with lesser consequences.

  1. They could claim that the person causes trouble on their premises and kick him out when he shows up.
  2. They could start a public campaign claiming that the person is trying to discredit them. In this case they are the ones who could be sued for defamation, but the damages the plaintiff could claim wouldn't be very high.
-2

Depending on precisely how unsavoury the people endorsing you are, one potential option is to offer them a contract whereby you pay them not to endorse you:

https://www.theguardian.com/media/2011/aug/17/jersey-shore-situation-abercrombie-fitch

This would obviously not be to your advantage if the contract became public knowledge, but a non-disclosure agreement might mitigate this risk to some extent.

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  • 3
    You can do this, but "Arby's pays neo-Nazi group" is probably not going to make a better headline than "neo-Nazi group claims to love Arby's."
    – reirab
    Commented Feb 15 at 21:59
  • I agree, for an example this extreme, it would not make sense, at least not if the contract was publicly known.
    – user3490
    Commented Feb 15 at 23:23
  • this actually makes more sense with a more blackmail-y flavour to it: suppose the bad-faith endorsers are the ones suggesting this deal...
    – user45266
    Commented Feb 16 at 4:34

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