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Gazette Premium Content Gay couple in attack mailer urges suit to advance

Staff reports Updated: December 11, 2012 at 12:00 am

DENVER — A New Jersey gay couple whose engagement photo was used in Colorado political attack mailers are "innocent bystanders" whose image was stolen, and their federal lawsuit against a group who used the picture should proceed, attorneys said in a court filing.

"They are not celebrities or public figures or emblems of the gay-rights movement. They did not insert themselves into Colorado politics," attorneys with the Southern Poverty Law Center said in a court filing in Denver federal court Monday on behalf of 32-year-old Brian Edwards and 37-year-old Tom Privitere.

The court filing was in response to arguments by the Virginia-based Public Advocate of the United States, which said last month that the lawsuit should be dismissed. The group, which lobbies for issues like traditional marriage, said that by using the couple's photo in political attack mailers in Colorado they were "engaging in the type of political speech" that is protected by the First Amendment.

"Whether one agrees with Public Advocate's position or even finds it hurtful, repulsive and beyond the bounds of decency is utterly beside the point," attorneys for the group argue in a November filing.

A hearing on Public Advocate's motion to dismiss the case has not been set. The lawsuit was filed in September.

Without permission, the group took a photo that the Edwards and Privitere posted on their blog, showing them holding hands and kissing with the Manhattan skyline in the background. The photo was used in mailers in a June primary election involving Sen. Jean White, one of a handful of Republicans who supported a civil unions bill that was blocked in the state House. The mailer, which replaced the Manhattan skyline with a snowy background, read: "State Senator Jean White's Idea of 'Family Values?'"

White lost the primary against a fellow Republican in a northwestern Colorado district.

Public Advocate also used the couple's photo in a mailer that for another northern Colorado state legislative race.

Attorneys for Edwards and Privitere argue that "there is no independent First Amendment defense to copyright infringement."

Public Advocate's attorneys said the group used the mailers with Edwards and Privitere "to promote the traditional family values by educating prospective voters in the races for elective office."

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Find Ivan Moreno on Twitter: http://twitter.com/IvanJourno

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