Shock: Liberal ACLU Defends Black Pro-Lifer’s Free Speech Rights From NAACP Attacks

National   |   Steven Ertelt   |   Oct 14, 2014   |   3:59PM   |   Washington, DC

In a surprising move, the pro-abortion ACLU has submitted a legal brief defending the free speech rights of a black pro-life advocate under attack from the NAACP.

Earlier this year, a judge issued a ruling in the NAACP lawsuit against Bomberger, a black pro-life leader who exposed its pro-abortion views in an article appearing at The judge indicated that Bomberger had no First Amendment right to lampoon the NAACP by calling it the National Association for the Abortion of Colored People in an effort to mock its pro-abortion position and opposition to pro-life legislation.

ryanbomberger29Now, the ACLU is getting involved in the case and it has filed a legal brief with a federal appeals court arguing Bomberger’s case.

“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,” Bomberger said in response. “The EFF is the “the leading nonprofit organization defending civil liberties in the digital world.” The brief was produced by the First Amendment Brief Clinic out of UCLA School of Law, led by First Amendment advocate Professor Eugene Volokh. Read here. PDF of amicus brief here.

Meanwhile, a pro-life legal group has also filed a brief asserting Bomberger’s free speech rights to parody and criticize the NAACP over its longstanding abortion advocacy.

Dana Cody, President and Executive Director of Life Legal Defense Foundation, said, “When the NAACP turned on African-American pro-life advocate, Ryan Bomberger and The Radiance Foundation, slamming them with a frivolous trademark lawsuit, many were surprised.  It seemed ironic that the nation’s most prominent black civil rights organization would lash out at those working to “illuminate, educate, and motivate,” especially a group that is led by and works closely with people of color.”

Life Legal Defense Foundation filed a “friend of the court” amicus brief today in the United States Court of Appeals for the Fourth Circuit, supporting Bomberger and The Radiance Foundation in the request to have a prejudicial lower court decision reversed.

Cody said “The court gave lip service to the First Amendment, but completely disregarded its practice in obliterating Ryan’s free speech rights. The idea that public criticism of a group for observing the disconnect between their name and their actions can land one in court is outrageous!”

The non-profit law firm compares Bomberger’s denouncement of the NAACP to 19th century newspaper editor and abolitionist William Lloyd Garrison’s demonization of the American Colonization Society for its “socially acceptable” support of slavery.  The brief draws the conclusion that if the District Court’s rationale were applied to Garrison’s writings against slavery, he might be sued and found to have engaged in trademark infringement for using the American Colonization Society’s pro-slavery language to discredit their promotion of human bondage.

Bomberger says the real problem is not his free speech but the NAACP’s abortion advocacy.

“Abortion doesn’t advance people of color,” he said. “The NAACP is on the wrong side of this human rights issue, and they are wrong to try to silence our free speech, too.”

naacpb“Although other commentators had criticized the NAACP for its position on abortion, only the criticism leveled by Radiance caused people to complain to the NAACP about its position. However, no one expressed confusion about who the NAACP was, what its real name was, or who the articles were criticizing,” the brief filed in The Radiance Foundation v. National Association for the Advancement of Colored People explains.

“Radiance’s use of the NAACP’s marks was not used to identify the source of their alleged goods and services or, in fact, to identify any goods and services,” the brief continues. “As such, there is an insufficient nexus between Radiance’s goods and services and its use of the NAACP’s marks to find trademark infringement.”

“Many organizations, including the NAACP itself, regularly engage in social commentary and should not be penalized or discriminated against for expressing their beliefs. The NAACP should respect that same right for Radiance,” added ADF Senior Counsel Casey Mattox. “The First Amendment protects the freedom of all organizations, regardless of their political or religious views, to comment on the views of others. We hope the 4th Circuit will reverse the district court’s flawed decision.”

After Bomberger published his article at LifeNews, , the NAACP threatened to sue and Ryan Bomberger, a LifeNews blogger , for a column that took the civil rights organization to task over its abortion position. The NAACP is upset about a column Bomberger wrote at LifeNews titled, “NAACP: National Association for the Abortion of Colored People,” which notes the organization’s 44th Annual Image Awards.

naacp3Following the piece, the NAACP sent Bomberger, the director of the Radiance Foundation, and LifeNews a threatening letter claiming infringement on its name and logo for including it in the opinion column. The letter accuses Bomberger (left) and his group, the Radiance Foundation, of “trademark infringement” over an ad campaign that exposes the NAACP’s pro-abortion position.Stating that while “you are certainly entitled to express your viewpoint, you cannot do so in connection with a name that infringes on the NAACP’s rights,” the letter demands a response within a self-imposed time period.In response to the letter, Bomberger asked a federal court to declare that the First Amendment protects his and the Radiance Foundation’s exercise of free speech and that his speech does not infringe on any of the NAACP’s trademarks or other rights. The lawsuit does not seek any damages.

In its countersuit, the NAACP’s counterclaim denies that the NAACP is pro-­-abortion or has even taken a position on the issue.

U.S. District Court Judge Raymond Jackson ruled in favor of the NAACP, denying Bomberger’s right to comment upon, satirize, or criticize the NAACP’s documented pro-abortion actions by (in part) parodying their name. This ruling is a frightening attack on his First Amendment rights or others who want to comment on the NAACP’s pro-abortion position.

In Judge Jackson’s 52-page ruling, despite voluminous evidence to the contrary (including the NAACP’s own unambiguous 2004 Resolution supporting the “right to choose” abortion), asserts that: ‘The NAACP has no formal or official position or policy regarding abortion because such a position may create problems within its diverse membership and constituency, who embrace a wide range of views on the controversial issue of abortion.” Judge Jackson uses this as the basis to strengthen the NAACP’s trademark infringement and dilution claims.

Despite the fact the LifeNews article in question simply parodied the NAACP’s name, criticized the organization’s documented pro-abortion actions, and used the NAACP’s unaltered logo to identify the civil rights group the judge refused to dismiss the case as a First Amendment issue.

Although the NAACP took offense at the article, Bomberger has frequently spoken out about the NAACP’s pro-abortion stance and its ignoring how abortion disproportionately targets black unborn children. The NAACP recently came under fire for opposing a bill to ban abortions based on race.

“The damage done is the loss of over 15 million black lives to abortion,” Bomberger, an adoptee and adoptive father., told LifeNews previously before the ruling. “How can the NAACP possibly claim neutrality over the abortion issue if they’re financially profiting from annual sponsorship from the nation’s largest abortion chain?”

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Bomberger has previously pointed out that the NAACP’s website reveals that Planned Parenthood, the nation’s biggest abortion business, has been a corporate sponsor of the NAACP’s Annual Convention for years.

Before the ruling, Bomberger told LifeNews the NAACP has not acknowledged that more black babies are aborted in New York City, the home of Planned Parenthood, than are born alive. Instead, NAACP NY State Conference and NAACP Syracuse/Onondaga supported an alarming bill (championed by NY Governor Andrew Cuomo) called the “Reproductive Health Act” (RHA). This abortion bill would have removed abortion language entirely from the state’s homicide criminal codes, allowing abortions through the entire pregnancy and declaring abortion a “human right” thereby stripping any current or future attempts at regulating abortion clinics.

He said the case of Kermit Gosnell reveals what happens when regulations are not enforced. NAACP joins a massive coalition of radical pro-­-abortion groups including NARAL Pro-­-Choice New York, Religious Coalition for Reproductive Choice, Ms. Foundation and Planned Parenthood in opposing the kind of regulations that could have stopped Gosnell.

Despite the NAACP suit, Bomberger says the Radiance Foundation’s abortion awareness campaign will continue to expose failed leadership in the black community on the issue of abortion.

Abortion alone has taken the lives of over 16 million black children. For every 100 live births in the African American community, another 77 are aborted.

African-American teenage abortion rates are more than twice as high as the national average, according to a new study. The African-American abortion rate, according to the study conducted by the Guttmacher Institute, is 41 per 1,000 women among the 15-19 year old age group. The national average abortion rate is 18 per 1,000 women among 15-19-year-olds.

Alliance Defending Freedom allied attorney Charles M. Allen with the Glen Allen, Va. firm Goodman, Allen & Filetti PLLC is defending Bomberger and Radiance in U.S. District Court in The Radiance Foundation v. National Association for the Advancement of Colored People for the Eastern District of Virginia, Norfolk Division.