Month: December 2016

Thank Goodness It’s First Mondays

2016 hasn’t been a great year for the Supreme Court.  February saw the passing of Justice Scalia, whose self-professed mission was to interpret the law using a principled, apolitical methodology that respected the role of an independent judiciary in a democracy.  And when President Obama attempted to replace Justice Scalia, Republican Senators dishonored Justice Scalia’s judicial philosophy.  The Senate Judiciary Committee cynically refused to even allow a vote on Judge Merrick Garland, a well-qualified, moderate nominee, so that Republican-appointees could continue to constitute a majority of the Supreme Court.  With a new President-elect who displays an apparent lack of knowledge of constitutional law, the Supreme Court’s legitimacy as a nonpartisan institution that safeguards our constitutional rights is now more important than ever.

One bright spot in this bleak SCOTUS year is a new podcast that covers the Court expertly and candidly.  Ian Samuel and Dan Epps, both former Supreme Court clerks, recently launched First Mondays.  This podcast, inter alia, reviews grants of certiorari, discusses oral arguments, and makes predictions about both the outcomes of cases and which Justice will be assigned to author the majority opinion for each case.  Samuel and Epps present both sides of each case charitably, and allow the listener to understand the import of the outcome of a case and the nuances of the doctrine.  They share nuggets about litigant strategy and provide tips about the Justices’ thinking while never allowing the listener to forget that legal reasoning matters.  They host guests who are experts in their fields and make areas of law as abstruse as Johnson retroactivity and bankruptcy settlements scintillating.  They banter about securities fraud.

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Lee v. Tam: Offensive Trademarks at the Supreme Court (A Series)

Part Four: Is the Disparagement Clause Impermissible Viewpoint-Based Discrimination?

(The previous entries about Lee v. Tam, in order, are here, here, and here.)

This month, the Chinatown Dance-Rock band headlining the Lee v. Tam case released a song about its upcoming battle at the Supreme Court.  The band is fighting for the Patent and Trademark Office (PTO) to allow its name, The Slants, to receive federal trademark registration.  The PTO denied registration based on the fact that the term “Slants” is offensive to those of Asian heritage, despite the band’s desire to re-appropriate the term and undermine racial stereotypes.

To The Slants, this case is about the impropriety of the PTO’s use of trademark’s disparagement clause, which denies trademark registration to an applicant whose brand is racially disparaging.  However, the case has broader implications.  At issue is whether the disparagement clause itself violates the First Amendment.  The case will create precedent about when the government can deny trademark registration simply because it deems a trademark offensive to a relevant group.  Ultimately, this is civil liberties case about whether the government can deny benefits to groups so that the government can disassociate itself from what it deems racist messages.

Because this is a First Amendment case, much of the case turns on whether the disparagement clause is classified as a content-based or viewpoint-based restriction on speech.  This content/viewpoint distinction matters because, as mentioned in Part Three, the government is never allowed to discriminate based on the viewpoint of speech unless the speech is classified as the government’s own speech.  The government is allowed to separate speech based on content in the distribution of benefits as part of a benefit program, which is distinct from government speech itself.  However, if the Supreme Court deems the disparagement clause not part of a government program but a direct restriction on speech (as the Federal Circuit did), then the disparagement clause cannot discriminate on the basis of either content or viewpoint unless the speech restriction is narrowly tailored to serve a compelling government interest, the strict scrutiny test.  Regardless, in no case other than government speech can the government target viewpoint as a basis for speech preference.

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Lee v. Tam: Offensive Trademarks at the Supreme Court: Speech Rights and Government Prerogative (A Series)

Part Three:  The Best Arguments for Allowing the Denial of Registration to Disparaging Trademarks

This post is the third in a series on Lee v. Tam, a case addressing whether the federal government may deny registration to trademarks that disparage individuals, institutions, or racial and ethnic groups.  The previous posts are here and here.

In this post, I will present the strongest case for reversing the Federal Circuit, which struck down the disparagement clause as unconstitutional.  Some of the best arguments for the position that the disparagement clause is constitutional are articulated in an excellent brief written by amici curiae Law Professors, whose research and teaching focuses on intellectual property law.  After presenting these arguments, I will begin a rebuttal.  My current inclination is that the Federal Circuit’s holding is correct.  Much of the Law Professors’ argument depends on classifying the disparagement clause as targeting only content, not viewpoint, but I believe the disparagement clause is an impermissible viewpoint-based classification of speech.

Amici’s argument, in essence, is as follows  (in my words):

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