2015-10-28

The case is Pro-Football, Inc. v. Blackhorse, which is currently pending in the United States Court of Appeals for the Fourth Circuit. The stakes in that game will soon get higher as two noted First Amendment players prepare to file a brief in the case — Dean Rod Smolla and Floyd Abrams. Their amicus brief is being filed today on behalf of “professors who regularly engage in legal scholarship and litigation matters germane to the First Amendment, including the intersection of freedom of speech and intellectual property.”

As District Court Judge Gerald Bruce Lee described it in his opinion, this “case concerns Blackhorse Defendants’ petition to cancel the registration of six trademarks owned by PFI on the grounds that the marks consisted of matter that ‘may disparage’ a substantial composite of Native Americans and bring them into contempt or disrepute under Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), at the time of their registrations (1967, 1974, 1978, and 1990).”

District Court Ruling: As to the Pro-Football Inc’s (PFI) First Amendment claims, Judge Lee ruled: “With regard to PFI’s First Amendment challenge, the Court DENIES PFI’s Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America for two reasons. First, Section 2(a) of the Lanham Act does not implicate the First Amendment. Second, the federal trademark registration program is government speech and is therefore exempt from First Amendment scrutiny.”

→ Enter Smolla & Abrams: First, they argue that “Section 1052(a) of the Lanham Act is a brazen exercise in viewpoint discrimination. On its face and as its animating purpose, it exists to discriminate against expression perceived by the government to be disparaging and offensive. Under the strict scrutiny standard applicable to content and viewpoint discrimination, the law cannot stand in light of the bedrock principle underlying the First Amendment that government may not penalize speech merely because it is deemed offensive or disagreeable. These principles apply to laws that burden speech just as they apply to laws that fully censor it.”



Dean Rod Smolla

Next, they maintain that “Section 1052(a) is plainly unconstitutional unless some alternative First Amendment doctrine is applicable exempting the statute from the normal strictures forbidding viewpoint discrimination. Several have been posited. One claim is that trademark registration is ‘government speech’ and thus outside the provenance of the First Amendment. A second argument is that trademark registration is a government benefit, not a right, and that what appears to be viewpoint discrimination is merely the government acting to shape the contours of a benefit program. And finally, it may be claimed that regulation of disparaging trademarks constitute a valid regulation of commercial speech. None of these arguments are sound.”

In response, Smolla & Abrams offer four main arguments:

“A decision by the government to deny trademark registration does not fit either the theoretical justifications that support the government speech doctrine, or the doctrinal tests that have emerged to define the doctrine’s contours. . . .”

“Trademark registration is similarly outside the doctrinal definition of government speech. Trademarks are understood in society as the identifiers of private speakers. Trademarks are not created by the government, aligned with the government, or functionally used as “government IDs” or platforms for government expression. . . .”

“The doctrine of unconstitutional conditions bars the government from denying government benefits to speakers on the condition that those speakers surrender First Amendment rights they would otherwise enjoy. While the unconstitutional conditions doctrine does not bar government from using the leverage of a public benefits program to prevent discriminatory conduct (as, for example, with gender discrimination provisions of Title IX), § 1052(a) is not an anti-discrimination provision, and the Washington Redskins franchise does not stand accused of any discriminatory conduct. . . . ,” and

“Section 1052(a) cannot be defended as a valid regulation of commercial speech. Although trademarks are commercial identifiers, and regulation of trademarks are often regulations of commercial speech, there is no commercially related purpose underlying § 1052(a)’s prohibition on disparaging, scandalous, or contemptuous marks. It is entirely the non-commercial elements of the communication that § 1052(a) regulates, the elements deemed by the government to be culturally and politically offensive. The cancellation of the Redskins mark is thus not in any authentic sense commercial regulation at all, and ought not be analyzed under commercial speech doctrine.”

Disclosure: I signed onto the Smolla-Abrams amicus brief.

→ Related Stories ←

→ Alex Christian, “Is There Hope for the Washington Redskins’ Trademarks After All?,” Davis Brown, Oct. 22, 2015

→ “California governor bans Redskins name at public schools,” Associated Press, Oct. 13, 2015

→ AAron Kraut, “Debate Over Washington Redskins Name Comes to County Elementary School,” Bethesda Magazine, Oct. 26, 2015 (“After a parent said the school system should bar staff and students from wearing team garb, other parents defended the name.”)

→ Steph Bazzle, “ACLU On Redskins’ Trademark Case: Government Shouldn’t Force The Team To Change Its Name,” Inquisitr,  March 8, 2015

Begging & the First Amendment



Matt Segal
© 2011 Marilyn Humphries

Here is an op-ed by Matthew Segal (of the Massachusetts ACLU) concerning the rights of the poor to engage in life-sustaining speech (aka begging). What follows are excerpts from Mr. Segal’s  op-ed, which recently appeared in The Guardian:

“All across America, municipalities have criminalized begging. This is bizarre. It is now clearly established that the first amendment protects people who express themselves by spending millions of dollars. How can it fail to protect people who express themselves by asking for one dollar?”

“Many cities have suggested that begging fails to express ideas worthy of the first amendment. Not so. Requests for charity – whether from homeless persons, Salvation Army volunteers or firefighters – express need. They do so inherently and sometimes profoundly. . . .”

When we ban begging we take away the first amendment rights of the poor.

“Anti-begging measures contradict not one but two recent supreme court decisions: McCullen v Coakley, which invalidated a Massachusetts law creating buffer zones around reproductive health clinics, and Reed v Town of Gilbert, which invalidated an Arizona sign code because its rules hinged on what each sign said. So zones that prohibit begging are unconstitutional both because anti-speech buffer zones are problematic under McCullen, and because singling out one type of speech – begging – is content-based, like the sign code struck down in Reed. . . .”

“[B]eyond case law, the more fundamental issue is that begging codes risk apportioning first amendment rights by wealth. The poor cannot buy TV ads. They cannot afford lobbyists. They are not trending on Twitter. So it is cruel and unfair to say that governments can safely regulate words, including requests for charity, spoken by the poor but not by the wealthy.”

“If censorship cannot be justified by worries about animal cruelty or money in politics, then governments should not be permitted to ban begging just because it makes people feel icky.”

Anti-panhandling laws are just another form of unpopular speech. And the point of the First Amendment is keep government from suppressing what is unpopular or even despised.  — Robert Corn-Revere, Oct. 26, 2015

→ Police Officer Uses First Amendment to Protest “Scam” Panhandler (see video here) ←

Campus Free-Speech Watch

A recent survey reported college students, by a margin of 51% to 36%, favor speech codes. WSJ, Oct. 22, 2014

Shane Vander Hart, “Yale Students: The First Amendment is Outdated,” Caffeinated Thoughts, Oct. 27, 2015

“Groups call for censorship of popular social media app on college campuses,” Fox News, Oct. 27, 2015

Eugene Volokh, “Share on FacebookShare on TwitterShare via EmailFeminist Majority Foundation (publisher of Ms. Magazine) and others call for restricting campus speech,” The Volokh Conspiracy, Oct. 27, 2015

Larry Gordon, “UC panel hears competing claims about anti-bias rules and free speech,” Los Angeles Times, Oct. 26, 2015

“UC Asks Public For Input On Rewrite Of Free Speech Policy; Jewish Groups Say It Doesn’t Go Far Enough,” AP & CBS, Oct. 26, 2015

Eugene Volokh, “National coalition in favor of campus censorship,” The Volokh Conspiracy, Oct. 26, 2015

Pam Key, “Todd to Carson: How Is Monitoring Colleges Political Speech Not Violating First Amendment?,” Breitbart, Oct. 25, 2015

Alex Morey, “Wesleyan University President on ‘Argus’ Debate: ‘There Is No Right Not to Be Offended.’,” FIRE, Oct. 26, 2015

Alex More, “Speaker Disinvited from ‘Uncomfortable Learning’ Series for Making Students Uncomfortable,” FIRE, Oct. 22, 2015

Germaine Greer onTrans Women: A Non-Event

→ Dan Hitchins, “Free speech is the natural ally of transgender rights,” The Spectator, Oct. 27, 2015 (“Enter the student censors, this time in Cardiff, who have decided that because of her crude [and as Hitchins terms them, “offensive”] remarks about trans women, Germaine Greer should be banned from speaking, even on a different subject. To his credit, Cardiff’s vice-chancellor Colin Riordan came out in support of the event going ahead, but Greer seems to have chosen not to turn up. It’s another bleak moment for free speech – and it may not be a particularly great moment for transgender rights, either.”).

Online Symposium (Part II) on  Citron’s Hate Crimes in Cyberspace

Here is this week’s publishing schedule for the Hate Crimes in Cyberspace symposium, which appears on the Boston University Law Review Annex:

10/26 — Mark A. Graber, “Hate Crimes at the Front and Back End of Free Speech Law”

10/27 — Andrew Koppelman, “How Citron Changes the Conversation”

10/28 — Ryan Calo, “For Whom the Bell Trolls”

10/29 — “Mary Anne Franks, Censoring Women”

Forthcoming Books

Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (Yale University Press, May 24, 2016)

Katharine Gelber, Free Speech After 9/11 (Oxford University Press, June 14, 2016)

Mary Katharine Ham & Guy Benson, End of Discussion: How the Left’s Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (and Fun) (Crown Forum, July 12, 2016)

David Cole Reviews Neuborne’s First Amendment Book

Book Review: “Free Speech, Big Money, Bad Elections,” New York Review of Books (Nov. 5, 2015)

Reviewing Madison’s Music: On Reading the First Amendment by Burt Neuborne.

Here are a few excerpts from Professor Cole’s review essay:

Is the Supreme Court to blame?: “According to Neuborne, the Supreme Court bears much of the blame for the depressing state of our democratic process. He is particularly critical of its decisions in Buckley v. Valeo, which allowed individuals to make unlimited expenditures on campaigns, and Citizens United, which ruled that corporate expenditures on political campaigns count as exercises in freedom of speech under the First Amendment and likewise may not be limited.”

Where lies the fault? “But are all these failures of democracy the fault of the Supreme Court? And would an alternative reading of the First Amendment solve them? That is what Neuborne argues in his sweeping indictment of the Court’s jurisprudence, which combines a rich understanding of the constitutional complexities with a gift for explaining clearly their consequences.”

How do we resolve the problems? “It is not clear, however, that acknowledging the First Amendment’s connection to democracy would resolve all the problems Neuborne identifies. . . . That the First Amendment was designed to promote democracy, however, does not dictate what rules best further that end, or how to balance the difficult dilemmas presented by electoral regulation. Neuborne, for example, criticizes the Court’s conclusion in Buckley v. Valeo that limits on a candidate’s campaign spending should be viewed as limits on the candidate’s speech. Spending, he argues, is conduct, not speech, and should be more easily regulated. But it costs money to speak, and because campaign finance rules by definition limit only expenditures expressing a political message, they deserve particularly careful judicial scrutiny.”

Reasonable minds differ: “Thus, careful scrutiny of limits on campaign spending is essential. Directing the Court to ask what is ‘good or bad for democracy,’ moreover, does not answer the question, since reasonable people can and do differ about what rules work best for democracy. Reasonable people also differ about the competing risks of, on the one hand, protecting incumbents by limiting campaign spending and, on the other, giving disproportionate advantages to wealthy candidates and unfair influence to big spenders.”

Retrofitting First Amendment Doctrine? “Neuborne is surely right that the current system is broken. His cogent criticisms of the status quo demand our consideration. But the answer does not lie solely in the retrofitting of First Amendment doctrine, and the solution does not lie exclusively with the Supreme Court.”

An important guide: “While it does not provide all the answers, Neuborne’s elegant book helps identify one source of the problem, and provides an important guide, grounded in the First Amendment itself, for those working toward an electoral system more deserving of the label of democracy.”

→ There is more, much more, to Professor Cole’s thoughtful review essay and I urge readers to read it in full.

New & Forthcoming Scholarly Articles

Jack Balkin, “Information Fiduciaries and the First Amendment,” UC Davis Law Review (forthcoming 2016)

Jack Balkin, “Cultural Democracy and the First Amendment,” Northwestern University Law Review (forthcoming 2016)

Alexander Tsesis, “Multifactoral Free Speech“, Northwestern University Law Review (forthcoming 2016)

Ashutosh Avinash Bhagwat , “The Democratic First Amendment,” Northwestern University Law Review (forthcoming 2015)

Daniel Jacob Hemel & David Scott Louk, “Is Abood Irrelevant?,”  SSRN (Oct. 22, 2015)

Antonin I. Pribetic & Marc J. Randazza, “‘War of the Words’: Differing Canadian and American Approaches to Internet Defamation,” Annual Review of Civil Litigation (2015)

Marc J. Randazza , “The Legal Status of Making Adult Films in Nevada,” Nevada Lawyer (2015)

News, Op-eds & Blog Posts

Trevor Timm, “Donald Trump’s twisted view of the First Amendment,” Columbia Journalism Review, Oct. 28, 2015

Susan Stamper Brown, “Why Are Progressives Afraid of the First Amendment?,” Town Hall, Oct. 27, 2015

Michael Scott Davidson, “First Amendment rebuke leads to North Port changes,” Herald Tribune, Oct. 25, 2015

Mark Saal, “Hate the First Amendment? That’s OK, it’s Free Speech Week,” Standard Examiner, Oct. 23, 2015

Gene Policinski, “Celebrate ‘Free Speech Week’: Speak up, speak out!,” GazetteXtra, Oct. 22, 2015

Editorial, “Warning: Corporate speech — This page protected by First Amendment,” Union Leader, Oct. 20, 2015

Upcoming Symposium: “Constitutional Challenges to FDA Law & Regulation”

Sponsor: Food & Drug Law Journal

Date: Friday, October 30, 2015

Location: Georgetown University Law Center (Register here)

Partial Agenda (9:15 a.m. – 12:15 p.m.)

Welcome & Opening Remarks

Session 1:  Compelled Speech

You Want a Warning with That?

Sabrina Adler, Senior Staff Attorney, ChangeLab Solutions, Oakland, CA

First Amendment Limits on Compulsory Labeling

Nigel Barrella, Sole Practitioner, Washington DC

Discussants:

Bert Rein, Founding Partner, Wiley Rein;

Stuart Pape, Shareholder, Polsinelli

Moderator: Allison Zieve, Director, Public Citizen Litigation Group, Vice-Chair,FDLI

Session 2: Constraints on Commercial Speech and the First Amendment

Tracing the FTC’s Line Between Advertising and Free Speech

Katie Bond, Senior Associate, Kelley Drye

The Promotion of Medical Products in the 21st Century

Alta Charo, Warren P. Knowles Professor of Law & Bioethics School of Law, and Dept of Medical History & Bioethics, University of Wisconsin

Discussants:

Rebecca Tushnet, Professor, Georgetown University Law Center

Coleen Klasmeier, Partner, Sidley Austin

Moderator: Richard Cleland, Assistant Director, Federal Trade Commission, Bureau of Consumer Protection

Upcoming Conference: “Free Speech in Higher Education“

Sponsor: First Amendment Law Review (UNC School of Law)

Date & Time: Friday, October 30, 2015 (8:30 a.m. -3:30 pm)

Location: Carolina Club, Chapel Hill (Register here)

[ht: Legal Scholarship Blog]

On this Day in 1989: Flag Protection Act Becomes Law; Protests Occur in Seattle

→ Go to Today in Civil Liberties History

The Court’s 2015-2016 First Amendment Docket

Review Granted

Heffernan v. Paterson, N.J. (cert. petition,  amicus brief) (see blog post here)

Friedrichs v. California Teachers Association, et al. (all briefs here)

Review Denied

Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

Miller v. Federal Election Commission

Rubin v. Padilla

American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority

Center for Competitive Politics v. Harris

Yamada v. Snipes

Freedom of Information Case

New Hampshire Right to Life v. Dep’t of Health and Human Services

→ The Court’s next Conference is on October 30, 2015.

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Last Scheduled FAN, #81: “Parody Prevails, Copyright Challenge Fails — the Play Goes On”

Next Scheduled FAN, #83, November 4, 2015

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