Valley News Staff Writer
Thomas Wiley, of Canaan, objects to the use of a photograph of himself in a Bernie Sanders political flier because members of the American Legion are required to be apolitical. The address has been obscured to protect the recipient’s privacy. Courtesy Thomas Wiley
Tuesday, February 09, 2016
Lebanon — With just days before the New Hampshire primary, the presidential campaign of Sen. Bernie Sanders, D-Vt., is taking heat from Upper Valley residents who say his campaign used their images on mailers without their permission.
When American Legion state officer Tom Wiley, of Canaan, was called by the Legion’s top officer in New Hampshire, Wiley didn’t know what it was about, but he said the tone of state Cmdr. John Graham made it clear something was wrong.
“He called me, quite straightforwardly, and asked me, had I endorsed any candidate,” Wiley said Saturday. “He asked specifically about Bernie.”
It was a sensitive subject, Wiley knew, both because the American Legion fiercely protects its image as a nonpartisan organization, and because Wiley is in the early stages of a campaign himself, for the post of New Hampshire’s Department Commander. If he were found to be guilty of flouting the group’s bylaws, it could sink his chances. “I said, ‘No, I’ve never even shook his hand,” said Wiley.
Wiley learned Graham had fielded a call from a Legion member in Plaistow, N.H., and that Wiley’s image was prominently included on the front page of a glossy campaign mailer, next to the words “Veterans fought for us. Bernie fought for them.”
Worse, in the photo Wiley is wearing a white American Legion hat, which identifies him as an officer of the organization’s New Hampshire Department (each state’s posts fall under a single Department).
“I said, ‘oh my God,’ ” said Wiley. “I went out to the mailbox that day, and my flier was in there. It was addressed to my wife, not to me.”
The flier also includes photographs of Lebanon Post 22 Cmdr. Robert St. Pierre, Laura Holland, the Auxiliary president, and Hannah Griswold, the past junior Auxiliary president, who were identified by Wiley.
The Legion’s national offices in Indianapolis quickly turned up a second Sanders campaign flier featuring Holland’s image. According to Wiley, Philip B. Onderdonk, the Legion’s national judge advocate, asked the Sanders campaign to stop using the images, though John Raughter, a national spokesman, declined to comment on the matter, other than to reiterate the Legion’s avoidance of political stances.
“The American Legion Constitution prohibits the organization from endorsing political candidates or parties,” Raughter wrote in an email Saturday.
Shouldn’t Have Happened
Wiley remembers when the photograph was taken.
It was during a Veterans Day event hosted by the Legion in Lebanon’s Colburn Park. Sanders, who was already a presidential candidate at the time, addressed the crowd from the bandstand after a parade, but made no partisan remarks, as was noted in Valley News coverage of the event.
Wiley said Sanders’ participation in the event was conditional on Sanders’ avoiding political statements.
While on the bandstand behind Sanders, Wiley said, he noticed there was a lot of press at the event, which made him slightly uncomfortable because he does not like to have his picture taken. “I moved from one side of that bandstand to the other (to get away from) a TV camera. I looked, and darned if there wasn’t another camera on the other side. I couldn’t get away from them.”
Wiley said the offending picture was taken by a woman who bore no obvious affiliation to the Sanders campaign or any media organization. He said he did not talk to the woman about the picture.
He had no idea, he said, that it would turn up in his mailbox four months later.
Experienced campaigners from both sides of the aisle said using a person’s image in a campaign advertisement without their permission is unethical. A well-oiled campaign will ensure that everyone whose picture is taken is asked to sign a release form at the time the picture is taken, they said.
Scott Tranchemontagne, who heads a public relations firm, was a political consultant for a variety of Republicans, including presidential candidates, between 1994 and 2010. “The first rule that any campaign staffer in charge of producing these types of materials is, you shouldn’t use an image without clearing the permissions,” Tranchemontagne said. “Those are basic rules of campaign materials production that were clearly disregarded in this case.”
Campaigns that cut corners up front often wind up paying for the mistake with just this sort of embarrassment, he said.
“Campaigns are about driving messages in support of your candidate and avoiding mistakes and pitfalls, because when you make mistakes and pitfalls, you open yourself up to the criticism of, ‘how did you let this happen?’ ” he said. “If you’ve got a conservative Republican featured in a Bernie Sanders mailer, then the other side can really use it to disparage your campaign.”
Lebanon City Councilor Karen Liot Hill, who has worked on more than a dozen Democratic campaigns over the last 10 years, agreed this shouldn’t have happened.
“The norm is that campaigns are very careful about this and that they generally gain consent,” she said.
Hill, who was at the Veterans Day event, said Sanders went above and beyond to avoid turning it into a campaign appearance.
“I heard someone ask a political question, and I heard him say ‘There’s a time for that. Today is a day for veterans and today, I want to focus on veterans.’ He was not politicking.”
Hill said that, while it might be presumed that attendees of a campaign event are supporters, the Lebanon parade was a community event.
“It’s not a campaign event,” she said. “I don’t think these people had expectations that their photos would be used in this way.”
Both consultants said Sanders isn’t the first candidate to make this mistake, and he probably won’t be the last.
“It’s a nonpartisan mistake,” Tranchemontagne said. “It happens to campaigns of all shapes and sizes and political parties. I see it happen at least once or twice every cycle.”
It may be unethical, but that doesn’t mean it violates election law, according to Brian Porto, a professor at Vermont Law School.
“I was interested to see whether the scenario you describe would violate New Hampshire election law,” Porto wrote in an emailed response to the Valley News. “It does not because no names were published. … Interestingly, the statute does not prohibit merely publishing someone’s picture without a name. I don’t know whether that means the campaign knew exactly how to avoid legal problems under the election laws or it just got lucky.”
Porto said the individuals who were featured were unlikely to prove that their First Amendment right to free speech had been violated, but they could potentially seek damages for “invasion of privacy, false-light publicity, or fraudulent misrepresentation, depending on what causes of action New Hampshire tort law allows.”
Tranchemontagne said such cases rarely see the inside of a courtroom.
“The remedy for these people is to discontinue that mailer and produce a different one. It costs additional money but it’s become a problem for the campaign,” Tranchemontagne said. “They should also contact the people directly and make an honest and sincere apology. Usually that is enough to make amends.”
There is a question as to whether the incident involving the Legion members is part of a larger pattern.
The Rev. Stephen R. Silver, pastor of the First Congregational Church of Lebanon, had an experience similar to Wiley’s.
Silver and his 9-year-old son, a Boy Scout, participated in the Veterans Day parade, and posed for a picture with Sanders during the event.
Silver said he was not asked to sign a release form, and had no idea that a picture featuring the three — Silver, his son and Sanders — would be prominently featured in a campaign mailer that he said has been mailed all throughout the state. Silver said the appearance that he endorses Sanders, or any political candidate, compromises his ability to minister to church members.
“I know in our church, we have Democrats, we have Republicans, we have independent voters. They’re all there,” he said. “I want them to know that they can all feel comfortable coming to me.”
After learning his face was on the Sanders mailer, Silver said, he clarified his role to Sunday churchgoers. He also wrote a letter to the Valley News and put a posting on Facebook.
“I do not wish to be seen offering my support to any particular candidate and have asked the Sanders campaign to cease and desist from using this image, in any form, immediately,” Silver wrote in the letter.
Complaints about the mailers with the photographs from the Lebanon Veterans Day event came the same week the Sanders campaign released a campaign ad on YouTube that included a graphic saying he had been “endorsed by” the Valley News.
The newspaper has made no endorsement in the Democratic race.
His campaign apologized to the newspaper and replaced the video on YouTube with a new version. Both the old and new version quote an editorial that appeared in the Valley News more than a year ago that welcomed a Sanders candidacy, noting “Sanders has been genuinely outraged about the treatment of ordinary Americans for as long as we can remember.”
Wiley said the American Legion understands he was not at fault in the incident and is taking no action against him. The only bad effect, he said, is that he is now subject to the ribbing of his Legion fellows.
“They’ll come up and ask you for their autograph,” he said, “or they’ll ask me how the campaign is going.”
A spokesman from the Sanders campaign said he was looking into the issue.
Matt Hongoltz-Hetling can be reached at firstname.lastname@example.org or 603-727-3211.