What Constitues An Endorsement?

I’m hoping someone out there can help me with some free legal advice. This will not be relied upon in court, it’s just a question that’s been kicking around in my head. What legally constitutes an endorsement?

If I bought t-shirts, and emblazoned them with my logo, does that constitute an endorsement of Haynes?

If I provide podcasts through my blog, and link to ipodder to provide a convenience for my readers (both of you) would that constitute an endorsement?

If I host a contest, and offer to give away a huge jar of M&Ms to the winner, does that count?

This comes up entirely too often in the realm of political content and the web. Every job I have had, from the state party in New Mexico to the campaign and the RNC has eventually involved me in a conversation about endorsement. I guarantee it came up with the Kerry team in ’04. When they linked to Kos, and Kos advocated for the killing of security personnel, someone in Kerry’s camp believed that link was an endorsement, and they withdrew it.

In the commercial realm, it seems the tolerance level is much higher. If phone companies can advertise on a website that features upskirt videos of Chilean Schoolgirls, there is clearly no concern that their ad constitutes an endorsement by the company of porn – they’re simply trying to reach customers.

In politics especially, I think the concept of endorsement is significantly overthought. Every link is analyzed with an eye toward the future – will it come back to harm us?

So I am hoping that someone – anyone – can tell me whether there is an actual legal threshold. Come on… Throw a brother a bone… Leave a comment, or use the Contact Me link to send me a note…

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