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In Missouri, Attorney General Jay Nixon joined the chorus, zealously denouncing the company for exploiting the state's crime victims. Unlike others, however, Nixon didn't stop there. He filed a lawsuit against Benetton on Feb. 9, including as defendants photographer Toscani, freelance writer Shulman, the NACDL's Rice and his assistant, Wasson. The attorney general claims that letters and forms submitted by the defendants misrepresented the purpose behind their prison visit to Potosi. All have been accused of trespassing on state property for hiding the commercial nature of their project.
"They were, in essence, trying to sell sweaters on the backs of Missouri crime victims," says Nixon. "They lied to get into prison. Really, what it comes down to is, should you be able to lie to get on to death row to sell your product? The answer to that question is unequivocally no."
Major, the Benetton spokesman, says that if the company intended to promote anything in this endeavor, it certainly wasn't the latest line of sportswear. "In this campaign, there is no product involved," says Major. "There are no sales involved. The photo essay itself wasn't being sold. There is no commercial motive."
By filing the lawsuit, Nixon claims, he's merely upholding the laws of Missouri. "I don't know what they did in other states," he says. "I have not had discussions with them concerning specific facts. I have not talked to the attorneys general about what forms (the defendants) filled out, who they said they were, whether they got this form letter or that form letter. We have sued under a simple state-court theory of deception and trespass by deceit. This isn't about what they said to people in North Carolina or Colorado. This is about what they said to people in Missouri."
Charles Hatfield, the assistant attorney general pursuing the case, finds the Benetton campaign reprehensible. "Even if they had gone into the facility and hadn't lied to us, they (still) should not have published this material," Hatfield says. "It glorified convicted murderers. I strongly disagree with what they did. But that isn't the legal issue. That's not what we have sued them about. This is a trespass case."
Major says Benetton is willing to accept criticism and even boycotts, but it doesn't feel that the state of Missouri should have the authority to expend public funds to quell free speech. "We don't mind being the whipping boy, if being the whipping boy means fostering this kind of debate and discussion. We just don't want to be the whipping boy with taxpayers' money. That's not the role of government entities. The attorney general is exploiting this whole situation for his own personal gain. Out of all the states that we went to and entered the penitentiaries, this is the only attorney general who is taking any kind of legal action. He's a grandstander."
In a sense, the attorney general is accusing the defendants of breaking into prison. The Kafkaesque charge is warranted, says Nixon, because they violated Missouri Department of Corrections (DOC) regulations by failing to inform prison officials that the death-row inmates' images and words would be used for an advertising campaign.
But the defense counsel for photographer Toscani sees the issues raised by the case as far more profound: It's about free speech. "If the "We, on Death Row" campaign had been perceived by the state as pro-death penalty, there would not have been a lawsuit," says attorney Robert Haar, a former St. Louis police commissioner. "So it seems to me that the lawsuit is really an attempt to punish or penalize the defendants for their viewpoint on an important political issue. I have not seen and do not believe that there were any misrepresentations. It (the death penalty) is a controversial topic in this country at this time. I think all the catalog attempted to do was give the reader another perspective on these individuals. I'm not sure it was a positive or negative perspective. It was just different. I'm a little perplexed about what the state's objections are."
For his part, the attorney general doesn't shy away from objecting to the content of the Benetton catalog, but he contends that's not why he filed the lawsuit." The trespass issue is separate from the content of the publication," Nixon says. "We would sue anybody for this kind of trespass, whether it was pro-death penalty or anti-death penalty."
Assistant Attorney General Hatfield echoes Nixon's reasoning: "We do not allow commercial use of our prison facilities. That's the rule for everybody. It doesn't matter what your political point of view is or the content of your commercial speech. The bottom line is that if they would have told us up front -- 'We would like to gain access because we're preparing something for Benetton that will be used by the Benetton Corp. and will be distributed throughout the country' -- we would have said no immediately." Hatfield compares the circumstances surrounding the alleged trespassing to gaining illegal entry through fraudulent misrepresentation. "It would be just like somebody coming to your house and saying, 'I'm the meter reader,' and they were lying to you and, in fact, they were there to go through your drawers to see what kind of underwear you wear."