Part One: The Weighty Legal Questions
Last month, the Supreme Court granted certiorari to review Lee v. Tam, a case about whether the federal government can deny registration to trademarks that disparage individuals or groups. At issue was the United States Patent and Trademark Office’s denial of trademark registration to a band called The Slants, a name that was intended to reclaim and de-stigmatize an Asian stereotype. The Slants appealed the denial of its registration application. The Federal Circuit Court of Appeals, sitting en banc as a full court, held that the denial of a trademark registration on the basis that it was racially insensitive violates the First Amendment. The Federal Circuit applied strict scrutiny to find that the disparagement clause of the federal trademark registration statute discriminates against speech on the basis of viewpoint and is therefore unconstitutional.
This case will decide many weighty legal questions, such as (1) does the First Amendment even apply to trademark registration, (2) is the denial of a trademark registration benefit treated differently than a direct penalty on speech, and (3) are trademarks purely commercial speech that are not subject to the highest constitutional scrutiny.
The facts of this case are particularly striking, because the trademark for the band The Slants was registered by Simon Shiao Tam to make a statement against racism and stereotyping. But if the Patent and Trademark Office deems a brand or product disparaging to consumers, the PTO can deny trademark registration. The outcome of Lee v. Tam will also have implications for the Washington Redskins, whose trademark registration was cancelled as being disparaging to Native Americans, and whose case is pending before the Fourth Circuit. The government’s position, that “the Constitution does not require Congress to open the federal trademark registration system to racial epithets,” applies to The Slants and the Redskins, despite the difference in how the names may be considered disparaging, and to many others applying for trademark protection. A separate provision of federal trademark law, which prevents registration of scandalous or immoral matter, might also be vulnerable to invalidation if the disparagement clause is deemed unconstitutional.
This case will decide sweeping issues of government power to regulate speech when the government creates a system that gives procedural and substantive benefits to some speech and not others. The right not to have one’s speech discriminated against on the basis that someone at the PTO finds the speech disparaging is countered by the government’s interest in disassociating its federal trademark registration system with what many might consider a racial slur. In Part One of a series on this case, I will provide a broad overview of the legal issues. Subsequent parts will delve deeper into the doctrine, precedent, and implications of the case.
Continue reading “Lee v. Tam: Offensive Trademarks at the Supreme Court: Speech Rights and Government Prerogative (A Series)”
In the third Presidential debate, Clinton and Trump essentially repeated their thoughts about what they want in a Supreme Court nominee. But, as their answers indicate, they were asked the wrong question. What we must demand of anyone appointing a Supreme Court Justice is, specifically, where do their views of the Constitution depart from their own political opinions.
In answer to the less pointed question they were asked, Trump again invoked his love affair with the Second Amendment (“and all amendments”) and then made some largely contentless statements about the respectability of the Justices he wishes to appoint. Clinton reiterated that she wants someone to “not reverse” Obergefell and Roe yet “stand up against” (i.e. reverse) Citizens United – this time her language evinced some awareness of how anathema it is to rule of law principles and the legitimacy and consistency of the law to overturn precedent simply based on disagreement (especially while simultaneously wishing to insure the longevity of precedent you like).
Continue reading “What we should really be asking SCOTUS nominees (and Clinton and Trump): When does your evaluation of judicial decisions depart from your own politics?”
Last night’s Presidential debate featured an uncomfortable amount of ugliness and shallow, canned, unrelentingly one-sided answers to important questions, but one bright spot was the candidates’ takes on what kind of Supreme Court Justice they would appoint to fill Justice Scalia’s vacancy. Although I disagree with much of what both candidates profess to be looking for, an exploration of their differences highlights the polar perspectives politicians have on an appointment process that is too politicized.
Continue reading “Clinton v. Trump on Supreme Court Justices”
Yesterday, I received an email with the subject line “Timely Warning Notice” from campus Security at the private institution where I work as a law professor. The email, directed to the entire campus community, mentioned that my university received a call regarding a “possible clown sighting.” Campus Security is now investigating the incident, and “[a]nyone found dressing as a clown on  campus will be processed with the local authorities.” I was immediately concerned – not about clowns, but about misleading students about their constitutional rights.
There is currently an epidemic of creepy clowns (if that isn’t redundant) terrorizing the country- some are harmless pranksters who enjoy dressing like a Stephen King nightmare while others are making actual threats of violence. The moral panic that you might imagine creepy terrorist clowns would induce is exacerbated by the fact that false reports of clowns luring children into woods or kidnapping people are also being filed with police.
Campus security wants to inform students that they have recourse against individuals purposely creating panic and fear, and that is a laudable goal. But what a private university can do to avoid the clown terror that has swept the nation is a complicated question.
Continue reading “Policing Clowns on Campus: What Is and Is Not Constitutional (and what is murky)”
France made headlines (and waves) last month after its burkini bans yielded photographic evidence of police officers forcing women to take off clothing on public beaches. Now, France’s highest administrative court (and other French judges) have begun invalidating these bans, instituted by 30 cities in France, that prohibit publicly wearing burkinis. Yet French citizens are still threatening to call the police on women wearing burkinis — swimwear, donned mostly by Muslim women, that covers everything but the face, hands, and feet.
In America, a ban on wearing religiously-affiliated clothing would be unlikely to succeed legislatively, and would certainly be invalidated judicially as both free speech and free exercise First Amendment violations. However, there are lessons we can learn from France’s struggles with the burkini ban as our First Amendment jurisprudence and free speech culture evolves. France’s reasons for implementing the burkini ban are echoed across the political spectrum: in calls to censor pro-Trump chalkings on university campuses and in approval of police officer’s denial of protection for football players who refuse to stand for the national anthem. And France’s staunch secularism conflates state refusal to ban religious clothing with state endorsement of religion, just as some scholars and critics of our current First Amendment doctrine believe that the failure to ban particular speech is tantamount to approving of such speech. In essence, France’s burkini ban debacle illustrates why attempts in this country to abridge speech some find offensive, un-American, or regressive are ultimately intolerant and misguided. The existence of the ban also shows the importance of distinguishing between state action and private action in determining when our liberties are restricted.
Continue reading “First Amendment Lessons From France’s Burkini Ban Debacle”
Time recently described the frequency and ferocity with which Internet users, often women, members of racial, ethnic, religious minorities, and members of the LGBT community, experience Internet trolling. Speech, ranging from vitriolic personal attacks, to racial and religious slurs, to threats of rape, to the development of slang terms like “cucks” to describe male feminists, to disclosure of personal contact information, causes many Internet users to avoid certain topics or disengage from the Internet community or public life. Internet trolling, according to the Time piece, is “the main tool of the alt-right” (famous for the men’s rights movement and anti-immigration views). Trolling is used as a way to voice displeasure against an all-female Ghostbusters and to galvanize support for controversial views.
In many ways, this type of speech is contrary to the ideal of public discourse that is civil, well-informed, sophisticated, and inclusive of a diversity of perspectives. In some cases, such as where the speech would cause reasonable fear for one’s immediate safety or would incite others to cause imminent physical harm, the speech loses its protection and becomes criminal behavior. However, because of our free speech protections, most of the trolling speech, even truly horrendous speech that gets very close to the line of threatening or inciting, cannot be prohibited. In essence, then, Time is arguing that our highly protective free speech doctrine can be counterproductive to social discourse and civic betterment. But what the Time article misses is both the importance of allowing this speech as a matter of First Amendment doctrine and the importance of the speech itself as a matter of free speech values.
Continue reading “What Time Misses about the Free Speech Benefits of Internet Trolling”
I watched with great interest, great inspiration, and sometimes great horror the Democratic National Convention and Republican National Convention. The Presidential nominees, Hillary Clinton and Donald Trump, and their supporting speakers pitched opposite visions of how to make America great. Clinton focused on service to others, cooperation, and inclusiveness. Trump emphasized protection against international enemies, economic stability, and domestic law and order. Although Clinton’s message of “Stronger Together” is certainly more palatable than Trump’s divisive, alarmist rhetoric, I believe that it also undermines something fundamental that makes our country truly exceptional – individual rights.
Continue reading “Clinton, Trump, and What Makes America Great”
Hillary Clinton has promised voters that, if elected, she will pursue a constitutional amendment to undo Citizens United v. FEC within her first 30 days in office. Citizens United, a controversial decision criticized by President Obama and opposed by both Republicans and Democrats, held that banning corporate expenditures on political speech endorsing candidates during an election is a First Amendment violation. Because I believe that the statute evaluated in Citizens United was unconstitutional, an amendment to the Constitution is the proper procedure for allowing greater restrictions on campaign expenditures. The content of this amendment is key to ensuring that it will be ratified, that it will be effective, and that it will not unduly censor political speech or disrupt our free speech paradigm.
Continue reading “Amending the Constitution to Undo Citizens United”
Today is my last day as a Climenko Fellow at Harvard Law School. Tomorrow I leave Boston to become a professor at Ohio Northern Law School. As I tell my students, transitions are a good time to reflect on how far we have come.
Continue reading “Reflections on my Future as a Professor and the Future of the First Amendment”
President Obama’s tenure has seen an alarming uptick in incidents that compromise the delicate relationship between politics and law. Politicians and citizens of all political stripes have contributed to this uptick. Most recently, the efforts to recall Judge Aaron Persky based on his sentencing decision in a highly publicized sexual assault case demonstrate how identity politics and emotional outrage can dramatically undermine our respect for an independent judiciary.
Continue reading “Trump University, The Stanford Sexual Assault Case, and The Importance of an Independent Judiciary”