Today, the Court announced its opinion in Matal v. Tam, previously (well) known as Lee v. Tam.  This post will be the final post in a series on that case.  The Court unanimously held that federal law prohibiting registration of disparaging trademarks violates the First Amendment.  Respondent Tam, a member of The Slants, now has the opportunity to register The Slants’ trademark, if the band name meets the other trademark requirements.  The cancellation of the Washington football team’s registration is now also likely illegal.  Speech, according to Justice Alito’s opinion, “may not be banned on the ground that it expresses ideas that offend.”

After oral argument, in a Court without Justice Gorsuch, I predicted that the Court would split 4-4.  In that event, the Federal Circuit’s decision striking down the disparagement clause would be affirmed by an equally divided Court.  This prediction was mostly wrong.  Every Justice voted to strike down the disparagement clause, although the Court did split 4-4 in its reasoning.  This post will cover the fractured opinions in Matal v. Tam.

Continue reading “The Opinion in Matal v. Tam (Final Post in a Series)” →

Since the opening of Wonder Woman, the Internet has erupted into a debate about all-female screenings of the superhero flick.  The debate involves who is more sexist:  the movie theaters and female moviegoers excluding those who identify as men (even as employees), or the men complaining about a small number of showings intended to celebrate a milestone in women’s representation in film.  Even the film’s director, Patti Jenkins, has mixed feelings about the all-female screenings.  Because it’s Friday, and because I am going to see Wonder Woman this weekend, I thought I would lasso up a discussion about the cultural and legal dynamics of this case.

My view is that these screenings likely violate public accommodations laws.  Further, the First Amendment likely won’t prevent the operation of those anti-discrimination laws, unless courts deem these screenings sufficiently selective and expressive.

Continue reading “Are All-Female Screenings of Wonder Woman Illegal?” →

Michelle Carter is currently on trial for the 2014 suicide of her boyfriend, Conrad Roy.  The then-17 year old Carter texted and called then-18 year old Roy, urging him to continue with his suicide plan after he expressed fear.  “Yes, no more thinking,” she wrote, “You just need to do it.”  She then listened on the phone while he cried in pain and died from the carbon monoxide pumped into his truck.  Carter’s defense attorney is now presenting evidence that Carter was herself troubled and taking Celexa, an anti-depressant that affects decision-making and empathy.

Separately, the hit reality-TV show Bachelor in Paradise has stopped production in Mexico amid allegations of sexual misconduct.  After a day of drinking, Corinne Olympios jumped into the lap of DeMario Jackson, and some amount of sexual activity ensued in a pool before producers intervened.  Olympios now blames the show for not stopping non-consensual sexual activity.  DeMario claims Olympios was the fully consenting instigator, inviting him into the pool and initiating much of the sexual activity.  Olympios does not fault DeMario, who was too drunk to perform actual intercourse.

These two current events, while factually different, raise a similar question – when can someone be held responsible for the “uncoerced” actions of another person?  This post will explore some of the legal issues in both cases and discuss the tension between incentivizing personal responsibility and preventing exploitation.

Continue reading “Suicide by Manslaughter, Bachelor in Paradise, and Personal Responsibility Versus Exploitation” →

Harvard’s student newspaper, The Harvard Crimson, broke the story that Harvard rescinded the acceptances of at least ten students for participating in an offensive Facebook chat group.  I then wrote a blog post criticizing the decision.  Harvard should not be policing the speech of students who voluntarily sign up for a chat forum. Although the students found each other through an official Harvard group, the private dark memes chat group was, as Harvard notes, unconnected to Harvard.  I believe both the tactics Harvard used (requiring students to turn over all communications within this chat group) and the severity of the punishment set dangerous and scary precedents. Even if a private (non-state) university is legally permitted to act as arbiter of what off-campus speech is acceptable for its students, that does not mean Harvard should do so.

After my piece was quoted in the Washington Post, I received a great deal of feedback from both supporters and opponents of my view.  The supporters were glad I was advancing a position that many keep to themselves.  The opponents expressed a range of views, many of which included thoughtful, important points.  Below, I reply to some of the most compelling objections.  Although I think Harvard is making a terrible mistake, this is a difficult issue.  I am glad to see so many engaging on a topic at the intersection of speech issues, privacy issues, and bigotry concerns at our nation’s premier university.

Continue reading “Objections to “On Harvard and Humor”” →

According to the Harvard Crimson, Harvard has revoked the acceptances of at least ten students admitted to the Class of 2021.  These prospective students formed a private Facebook group chat to exchange offensive memes.  They mocked child abuse, made racist jokes, and endeavored to deride all of the stances that we, academics and students, promote and hold hear.  These students behaved immaturely and offensively.  What Harvard did in response was much worse.

Continue reading “On Harvard and Humor” →

Part Two: Judicial Legitimacy and Governing Law

This is the second post in a series on whether, and how, President Trump’s campaign statements should be considered when deciding the constitutionality of his travel ban, Executive Order 13780 (EO-2).  The first post in this series, on the Fourth Circuit’s division over whether campaign statements can be considered in the Establishment Clause analysis, is here.   In this post, I explain why campaign statements matter to the constitutional calculus.  I also sketch out possible ways of treating the campaign statements to best comport with rule of law principles.

Continue reading “President Trump’s Travel Ban and His Campaign Statements (A Series)” →

May has been a disheartening month for the critical notion that speech is not violence – and thus violence is never justified against speech.   We began the month with news that a feminist philosophy professor was bullied by other scholars, until a journal issued a statement of regret for publishing her peer-reviewed article, because many believed her ideas perpetuated “violence.”  Greg Gianforte assaulted a reporter for bothering him with questions about health care policy, and then became a member of Congress.  Universities continued to deny speakers invited by their student groups access to their campuses, for fear of violence from both supporters and opponents of the speaker.  Bret Weinstein, a biology professor at Evergreen State College, was told by campus police to leave campus for a few days due to concerns for his safety.

There are so many worrisome developments happening in our country and abroad.  Just in the early hours of today, we laughed at a President who, unable to be checked or controlled, cannot manage to edit statements on a public platform.   There are racist and hateful incidents of violence perpetuated on trains in Portland and near the presidential palace in Kabul.   But with the concrete, we must deal with the abstract.  One development that is most worrisome for the soul of our country is that we are becoming a nation that increasingly responds to ideas with violence.

I write this not to assign blame.  We are all responsible, in myriad ways.  Right now, those who equate speech with violence remain in the minority – just as those willing to behave violently for a variety of reasons remain in the minority.  I write because this problem will only get worse unless we re-examine our values, our responses to those with bad values (even those in power), and our unique First Amendment traditions.  This is a problem borne of fear, of polarity, and of intolerance.

Continue reading “We Are Becoming a Nation that Responds To Ideas with Violence” →

After Greg Gianforte criminally assaulted a reporter from The Guardian, some members of the Republican Party denounced his actions.  Gianforte apologized.  Alarmingly, many of his supporters seemed to understand his actions, accepted his apology, and distrusted the media’s accounts of the incident.  Gianforte’s spokesman attributed his actions, in part, to badgering by a “liberal journalist.”  House Speaker Paul Ryan, true to form, criticized Gianforte but did not ask him to drop out of the special Congressional election.  Buoyed by early election results, Gianforte won his state’s seat in the House of Representatives.

The acceptance of Gianforte by many Republicans, and the GOP’s mass acceptance of Trump despite his authoritarian, illiberal tendencies, show disdain for the values of free speech and democracy that fuel our nation.  The First Amendment is safeguarded by the courts against majoritarian impulses to stifle speech.  However, a culture of dismissing free speech values is almost as corrosive to free speech as government censorship.  What the GOP is doing, by doing almost nothing to condemn Trump’s attacks on the legitimacy of the media and Gianforte’s literal attack of the media, is harmful to our democracy.

Continue reading “Democracy, Free Speech, and the GOP” →

In the short run, the marketplace of ideas does not always sort out truth perfectly.  Indeed, many false statements and bad ideas continue to propagate in diverse, fairly open free speech communities such as Twitter.  Some of the worst offenders, unfortunately, are politicians, as Part One’s installment on Donald Trump and Howard Dean demonstrated.   This installment tackles Portland Mayor Ted Wheeler’s tweets that the government should not issue rally permits to those who he (perhaps rightly) believes peddle hate speech – and exposes those who endorse his legally and philosophically incorrect views about the First Amendment.

Continue reading “The Worst First Amendment Myths on Twitter (Part Two)” →

Part One: Fourth Circuit Divides on Use of President Trump’s Campaign Statements in Travel Ban Case

Yesterday, the en banc Fourth Circuit majority affirmed the injunction against President Trump’s Executive Order 13780.  This executive order, the second iteration of its kind (EO-2), places a temporary ban on travel to this country from individuals without visas from six nations with majority-Muslim populations.  Ten judges held that the district court’s preliminary injunction should stand, finding EO-2 likely unlawful under either federal statutes or the Establishment Clause, with three judges dissenting.   However, only seven of the thirteen judges explicitly considered Trump’s statements made prior to his election.   Plus, four of the judges (one in concurrence and three in dissent) explicitly held that it is not proper for the court to consider statements made by an unelected official in determining the validity of EO-2.

The Supreme Court will likely have the final say on whether Trump’s campaign statements can be considered when assessing whether EO-2 violates the Establishment Clause.  Although the Supreme Court has acknowledged legislative purpose in the Equal Protection context by looking to the ways a proposed law is advertised, the Court has never considered whether an unelected official’s campaign statements can be used later to invalidate his official actions.  Using an unelected individual’s campaign statements to  invalidate his government behavior may have a deleterious effect on public debate.   This series will explore whether judges should consider Trump’s campaign statements in assessing the legality of EO-2 – both as a matter of sound constitutional jurisprudence and as a way of protecting the free speech values implicated by public debate.

Continue reading “President Trump’s Travel Ban and His Campaign Statements (A Series)” →