Advertising stunt or protected political speech? Lawsuit over Sam Parker cutout goes to judge

A judge has been asked to determine whether a marketing ploy deployed by Gulf Coast Gun and Outdoors owner Chris Smith utilizing the name and likeness of Santa Rosa County Commission Chairman Sam Parker qualifies as protected political speech or is simply an advertising stunt infringing upon Parker's rights.

Parker filed suit against Smith in December alleging the unauthorized use and publication of his name and likeness. Since April of 2020, it states, Smith has used the name and likeness of Parker as part of a "taxation is theft" sales promotion in which Gulf Coast Gun and Outdoors has covered the sales taxes of its customers on purchases made at the store.

Circuit Court Judge J. Scott Duncan presided Tuesday over a hearing on a motion from Smith's attorney, Anthony Sabatini, to dismiss the case. After hearing presentations from Sabatini and Erick Mead, Parker's legal counsel, Duncan said he would rule on the motion within the next couple of weeks.

Parker's lawsuit claims ads run by Smith using Parker's name and/or likeness are "uniformly derogatory" and have appeared on the social media platforms of Facebook, Instagram, YouTube and Twitter.

It claims Smith's use of the name and likeness violates state statute 540.08, which says; "No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by such person."

The ads in questions are produced at Smith's Gulf Coast Gun and Outdoors in Milton.

At Tuesday's hearing and in the body of his motion to dismiss, Sabatini argued that Smith's use of a cutout Sam Parker with his gun shop as a back drop isn't a gimmick to sell guns.

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The gun shop offers a well known location from which his client can project important political commentary, "exactly the type of speech the First Amendment protects," Sabatini said.

His messages are "almost identical" to what members of the community would say on Facebook, "without the backdrop," Sabatini said. What Smith is transmitting, he argued, is not guns for sale, but his own anger over the tax rate.

Smith has highlighted issues such as how county tax dollars are spent, derogatory statements Parker has made as a public official and political corruption in county government, Sabatini argued in his motion. His "satiric use of (Parker's) name can in no way be interpreted as an associated or direct promotion of his product."

"His statements are clearly satire and a means of entertainment, as well as humorous political commentary upon (Parker's) actions and statements as a public official," the motion said. "Speech on public issues occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection."

Mead has contended in his own filings, and stated at the motion hearing, that the law is clear where it comes to the unauthorized use of the name and likeness of a public figure.

"If it touches advertising purposes, it is actionable," he told Duncan. "And that's what we have here."

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Sarcasm and other form of humorous commentary would be fine "if it wasn't part of a sales pitch to sell guns," Mead told the judge Tuesday.

"The bottom line here is that it is used for commercial purposes," he said.

The complaint filed by Smith claims the gun store owner's use of Parker's name and likeness has diminished the value of Parker's "measured engagement with members of the public" as a politician and businessman.

It seeks an award of not less than $30,000 for any loss or injury sustained, including punitive damages and "an amount that would have been a reasonable royalty."

This article originally appeared on Pensacola News Journal: Gulf Coast Gun owner Chris Smith seeks to dismiss Sam Parker lawsuit