Because I teach, write, and care about First Amendment issues, I have come to appreciate more deeply the importance of the media’s role in fostering two of the major values underlying the First Amendment.  The media provides necessary information that allows citizens to participate more fully and rationally in our democracy (the participatory self governance theory of free speech).  More broadly, the media provides necessary information on which Americans can form opinions about any number of issues (the marketplace of ideas in the search for truth theory of free speech).  Unfortunately, at a time when the media’s role is most critical, more and more Americans have become cynical about the media.

If Americans don’t trust the media to report stories accurately and fairly, its critical role will be undermined.  The proliferation of actual “fake news” hasn’t helped this cynicism, nor has the increasing use of the concept of “fake news” to discredit stories one disfavors.  I would like this blog post to begin a conversation on how to restore faith in the media, by which I mean – how can more Americans embrace mainstream journalism as its source of credible information on topics relevant to public life and important private matters?

Continue reading “Neutrality, Partisanship, and Restoring Faith in the Media” →

Part Five:  The Final Pre-Argument Analysis

On January 18, the Supreme Court will hear oral argument in Lee v. Tam, the case that will decide whether the federal government’s denial of trademark registration to disparaging trademarks violates the First Amendment.

This case is extremely important — it will resolve the balance between free speech rights and government prerogative to deny benefits to those whose speech it finds disagreeable.  The outcome of this case will directly affect The Slants, the band whose trademark registration was denied because it was deemed offensive to those of Asian heritage, and Washington’s football team, whose trademark registration was cancelled as disparaging to Native Americans.  The case will also resonate more broadly to implicate any government program or government benefit where the government wishes to disassociate itself from objectionable/racist speech.

For an overview of the facts and legal issues in this case, see Part One of this series here.  In Part Two, here, I discuss the argument by Petitioner Patent and Trademark Office (PTO) that the government should be permitted to create an optional government program without endorsing racial slurs.  In Part Three, here, I present some of the best arguments in favor of the PTO, articulated in an amicus brief written by law professors who study trademark law.  In Part Four, here, I disagree with these law professors and explain why trademark law’s disparagement clause likely amounts to unconstitutional viewpoint discrimination.

In this post, I will present some of the best arguments in favor of Respondent Simon Tam, a member of The Slants, and some of the concerns with those arguments.

Continue reading “Lee v. Tam: Offensive Trademarks at the Supreme Court (A Series)” →

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.

Continue reading “Thank Goodness It’s First Mondays” →

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.

Continue reading “Lee v. Tam: Offensive Trademarks at the Supreme Court (A Series)” →

I will be sending the following an a personalized email to individual electors today.  I was concerned that blogging this would compromise the nonpartisan nature of this blog (and of my academic role), but this issue is just too important.  Feel free to share any thoughts from any viewpoint, as always.

Continue reading “Letter to Ohio Electors” →

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):

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

Yesterday, I posted a simplified practice torts hypothetical  for a closed-book exam here.

Below is a model answer, in outline form.  During the review session today, my students may come up with more issues (that’s what I love about torts).  If you see something I missed, say something.

Continue reading “Answers to Practice Torts Hypo” →

During these turbulent times, students and professors are actively engaged in politics, law, and thinking about the intersection of the two (and the places where the two should remain independent).  This engagement is necessary, but it is also fundamentally important that students and professors prioritize their apolitical duties of abstract and dispassionate critical reading, reasoning, and writing.  In that spirit, here is a fun practice exam hypothetical that I gave my students to prepare for their closed-book torts exam on Friday.  The actual exam essay is much longer and more convoluted, but this allows students to practice tackling claims systematically.

Answers will be up tomorrow!

Continue reading “Torts Hypothetical (Just for Fun)” →

Happy Thanksgiving!  I am extremely thankful to be an American, always.  If my great grandparents had not moved to this county, my family on both sides would have perished in Europe (and many did).  That said, some of the things that I believe distinguish this country as exemplary are eroding, and all of us, of every political stripe, can help alleviate our current political crisis.

Continue reading “A Moderate’s Proposal on Political Bubbles, Steve Bannon, and Returning to Principles” →

Part Two: Offensive Speech Connected with Government Approval

This blog post is the second in a series on Lee v. Tam, a case involving whether the Patent and Trademark Office (PTO) can deny registration to a trademark for the dance-rock band “The Slants.”  The first part of this series provided an explanation of trademark registrations and a broad overview of the weighty legal question that the Supreme Court will confront in Lee v. Tam.  This second part of the series addresses the difficult issue of how much control the government can constitutionally exercise over speech, especially speech that many find offensive, to which the government extends legal benefits.  Later blogs will cover other issues explored by the merits briefs and amicus briefs, questions by the Justices during oral argument, and larger implications for the intersection of free speech rights and government power.

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The briefs have been filed on the Petitioner PTO’s side in Lee v. Tam, and there are a number of excellent arguments made by the PTO and amici.  One of the most intuitively compelling of those arguments, made in the PTO’s brief, is that Congress should be permitted to “create an optional program of federal trademark registration without opening that program to racial slurs and other disparaging marks.”  In other words, Congress should be permitted to grant the benefits of trademark registration as part of a government-funded program only to those who do not use racially disparaging trademarks.

Although this is a difficult and nuanced issue, I believe this argument should ultimately be unavailing.  Yes, trademark registration is a government benefit, and the government may wish to disassociate itself from offensive trademarks.  However, the government cannot constitutionally discriminate on the basis of viewpoint in ways completely unrelated to the purpose of trademark when administering its registration benefits.  During a time when many in this country are concerned about authoritarian government control and abridgment of First Amendment freedoms, granting the government the power to regulate speech (even offensive speech) based on a loose government association with the speech will corrode free speech rights in many areas beyond trademark registration.

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