You have requested a formal opinion from the Committee regarding whether you may permit the University from which you were graduated to use your photograph and a statement you made during a graduation ceremony as part of an advertising campaign the University intends to mount.
By way of background, you have informed the Committee that you received your B.A. degree from the University several years ago. For a variety of reasons unnecessary to recite in detail here, the University played a singularly important role in your life. As a consequence, you have understandably remained a strong supporter of the University since your departure. At some point following your appointment to your present position, you returned to the University where you gave a commencement address in which you praised the University and attributed much of your success to things you learned while in attendance there.
The University, for a variety of reasons, has decided to embark on an advertising campaign designed to promote its visibility, enhance its name-recognition and generate good-will. The campaign is not specifically focused on fund-raising nor will the promotional materials generated in connection with the campaign be directed specifically at potential donors or contributors.
In connection with the campaign, the University has asked your permission to use a color photograph of you standing on the steps of what appears to be a University building with the words "[b]ecome what you believe" in bold letters across the bottom of your photograph. The words are presented in such a way that a reader would not be unreasonable if he or she attributed them to you.
The photograph and words just quoted consume approximately the top 3/4 of a standard 8" by 11" page. Immediately below the photograph is your name and position in the Massachusetts judiciary. The bottom quarter of the page contains a quotation from your graduation speech saying, in essence, that you learned "everything [you] need to know to do what [you're] now doing" largely at the University. Although the words from the speech appear in quotation marks, the advertisement does not identify the speech as the quotation's source. Next to the quotation is the University's seal, a statement in bold type that the University "gives you the edge," and the address, e-mail and paper, of the undergraduate and graduate admissions office.
The University proposes to print the advertisement in newspapers and magazines that will be distributed locally, nationally and internationally.
You have asked the Committee whether you may give the University permission to use the foregoing advertisement as part of its campaign. You have also asked whether, if the Committee's answer to that question is "no," modifications to the material would solve whatever problems the Committee perceived.
The starting point for the Committee's analysis is Canon 2(B) of the Code of Judicial Conduct which provides in pertinent part that a judge:
"should not lend the prestige of his [or her] office to advance the private interests of others . . . ."
The Committee construes the phrase "private interest" to include, at least presumptively, any proprietary or economic interest possessed by an entity other than the judiciary. So construed, the phrase embraces virtually all interests other than interests possessed by the judiciary or by the public at large.
The advertisement you have submitted to the Committee clearly is designed to enlist the prestige of your office in advancing the University's interests. Indeed, without in any way diminishing the importance and value to the University of the personal reputation you have developed, it is safe to say that the advertisement's primary impact on readers unfamiliar with you personally is likely to flow from the position the advertisement says that you hold.
In the Committee's view, the geographic area of the advertisement's likely circulation does not diminish Canon 2(B)'s force or its applicability to your inquiry. The Canon is designed to prevent public perception that a judge is using his or her office for any purpose save that for which the office was created, i.e., the neutral dispensation of justice to all litigants. By presumptively and prophylactically prohibiting all extra-judicial use of the prestige of judicial office, the Canon seeks to prevent erosion of public confidence in the judiciary that likely would flow from a perception that a judge was using his or her judicial office to advance particular private interests.
The question thus becomes whether other provisions of the Code lessen Canon 2(B)'s facially prohibitory force in the context of materials designed to advance the interests of a school from which a judge was graduated. In CJE Opinion No. 98-1, the Committee concluded that there were. There, a law school had produced a booklet about its alumni judges that included photographs and biographical sketches. The law school intended to use the booklet to attract potential students to the law school and did not intend to use it for purposes of raising funds. The judge sought the Committee's advice regarding whether he could permit the law school to include his photograph and a brief biographical sketch in the booklet.
After focusing on Canon 2(B), the Committee went on to consider Canons 4 and 5. It did so in the following language:
"Canon 2(B) must be read in the context of Canons 4 and 5. Canon 4 allows a judge to teach and participate in other activities concerning the law at any law school. That a law school numbers judges among its faculty would probably be a greater aid in the recruitment process than the proposed booklet. Also, Canon 5(B) allows a judge, in most instances, to be a member of the board of trustees of his or her alma mater, or an officer, director or trustee of its alumni association provided the judge does not directly engage in any fund-raising activities. Here again, such service may well impact the school's public image and admissions process to a greater degree than the proposed booklet."
Building on that platform, the Committee, while noting that at least one other advisory committee had reached a contrary conclusion, ended its opinion by saying that inclusion in the brochure of the name and likeness of the judge along with biographical information about him would simply allow the school to:
"enjoy the benefit any educational institution reaps from the success of its graduates - a benefit which, in our view, is not significant enough to implicate the Canons."
In analyzing the conclusions reached in Opinion 98-1, it is important to recognize that the promotional activity with which that Opinion dealt amounted to a series of rather straightforward factual recitations about the activities and accomplishments of law-school graduates. Nothing in the brochure amounted to an explicit endorsement of the law school's curriculum, faculty or place in the array of educational choices with which prospective faculty and students were confronted. Nevertheless, the Committee believes that the promotional activity at issue in Opinion 98-1 lies near the outer boundary of activity Canon 2(B) permits.
The proposed advertisement you have submitted represents something very different. It is not simply a portrait coupled with a factual recitation about your accomplishments or an attributed quotation from a speech in which you praised the value of your University education. Instead, it appears to be a ringing personal endorsement of the University's educational value and an energized exhortation to give the University an opportunity to perform individualized work of transcending value. That appearance flows from, among other things, (A) a portrait that appears to have been taken in front of a University building for purposes of the ad, as opposed to a depiction of a prior event unconnected to this advertising campaign (as, for example, your commencement address), (B) use of the words "[b]ecome what you believe" in a manner that reasonably can be viewed as your opinion of the likely result of a University education, and (C) as you noted in your letter to the Committee, the copy writer's election to use the words quoted in the blue portion at the bottom of the ad without attributing them to your graduation speech.
For all of those reasons, the proposed advertisement does not simply place facts before the public in a context that invites inferences favorable to the University. Instead, it presents to the public an endorsement deriving much of its considerable impact from the judicial office you hold. So viewed, the proposed advertisement is not consistent with Canon 2(B). The advertisement clearly and substantially uses the prestige of your office to advance the University's private interests. It does so in a way that cannot fairly be viewed as a manifestation of the ordinary pride all institutions of higher learning take in the accomplishments of their highly successful graduates. And it does so in a way that goes well beyond the ordinary activities Canons 4 and 5 routinely countenance.
Regrettably, the Committee cannot suggest in advance editorial or graphic alterations that would make the resulting advertisement consistent with the Canons. Much as it might like to be of greater assistance, the Committee believes that the possible variables are simply too great to permit a precise, and therefore useful, opinion without addressing a concrete proposal. Nevertheless, the Committee hopes that the analysis it has used to reach its conclusions may be helpful in avoiding impermissible results. Finally, the Committee's analysis is premised on the University's use of your name, likeness and words for purposes other than fund-raising. The rules and principles governing use of judicial names or likenesses in fund-raising efforts are very different from those discussed above. The Committee has not here addressed the rules and principles applicable to fund-raising because the University apparently has assured you that it has no fund-raising designs on the copy you have submitted for the Committee's consideration. In that regard, however, we note in a cautionary sense that the more widespread the circulation of any advertisement for the purpose of generating good-will is, the greater the danger that it will take on fund-raising aspects and may thereby run afoul of the ban against fund-raising activities on behalf of an educational organization. See Canon 5(B)(2)