May 13, 2011 | By corynne mcsherry

Mr. Peabody's Coal Train Tries To Run Down Free Speech

Peabody Energy is at it again, trying to stifle critical speech intended to call attention to the company's practices. Last year, Peabody tried to intimidate a website that spoofed the Peabody-sponsored "Consortium for Clean Coal Utilization (CCCU)." This week, Peabody targeted a website that focused on concerns about the impact of Peabody's activities on children's health. The site ostensibly had Peabody offer a free inhaler to any family living within 200 miles of a coal plant, stating:

Why Free Inhalers? Because COAL CARES. Coal Cares™ is a brand-new initiative from Peabody Coal, one of America's proud family of coal companies, to reach out to American youngsters with asthma and to help them keep their heads high in the face of those who would treat them with less than full dignity. For kids who have no choice but to use an inhaler, Coal Cares™ lets them inhale with pride.

It's a brilliant bit of identity correction but Peabody, once again, was unable to take a joke. On Wednesday, Peabody's lawyers sent a letter demanding that its name be removed from the website. And that meant that EFF, once again, was forced to explain that this kind of biting, funny political activism is also legally protected free speech. The legal analysis is not hard: the trademark fair use doctrine and the First Amendment both protect the use of Peabody's trademarks as a necessary part of political commentary. Moreover, the site was entirely noncommercial and several courts have held that noncommercial uses are exempt from federal trademark infringement claims (and for you law geeks, they are also statutorily exempt from dilution claims). As one court recently held in a similar "identity correction" case:

The Lanham Act regulates only economic, not ideological or political, competition . . . “Competition in the marketplace of ideas” is precisely what the First Amendment is designed to protect.

Quite right.

But these activists aren't about to be intimidated by a scary lawyer letter. Instead, they provided an additional response that noted that Peabody had a point, just not the censorship one it had tried to make. As they said in a statement today:

Your threat, although entirely baseless (see this response, and the EFF's blog post later today), did make us realize one thing: that Peabody, despite being our country's largest coal producer, and one of the largest lobbyists against common-sense policy, accounts for a mere 17% of U.S. coal production. . . .

As even you may agree, the root of the problem is not Peabody, but rather our system of subsidies, regulations, and lobbying that lets your whole industry continue its lethal work. To make this clear, we have changed every instance of the word “Peabody” on to a rotating selection of the names of other large U.S. coal producers who, like Peabody, also need to be stopped from killing kids.

We'll see if Peabody's industry partners appreciate the humor, and the political criticism, better than Peabody did. Even if they don't, the lesson is clear: the best response to critical speech is more speech, not legal threats.

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