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Back in September we wrote about a lawsuit between Flying Dog Brewery and the state of North Carolina over the latter’s Alcohol Beverage Control Board (ABC Board) denying a beer label for use within the state. The ABC Board refused to certify the label for use on the grounds that it was vulgar and offensive, especially to minors. With that, Flying Dog couldn’t use the label at all, anywhere in North Carolina. Notably, every other state had allowed the label to be used. So what was so offensive that North Carolina had to take this stand? See for yourself.
Figure it out yet? Zoom in on the image. Like, way in. See that little dangly thing hanging between the legs? The ABC Board contends that it’s a penis. Flying Dog made some noises about how it was actually a tiny tail… but c’mon guys, it’s a man-sausage. We all know this.
Still, it turns out that free speech is actually a thing, so Flying Dog filed suit against the state on First Amendment grounds. Both sides filed for summary judgement. The ABC Board contended it applied the following statute in order to protect children from being ambushed by the offensive existence of penises.
The rule provides that “An advertisement or product label on any alcoholic product sold or distributed in this State shall not contain any statement, design, device, or representation” which “depicts the use of alcoholic beverages in a scene that is determined by the [ ABC] Commission to be undignified, immodest, or in bad taste”.
It’s somewhat hard to imagine a governmental regulation more at direct odds with the First Amendment. Putting the approval for commercial speech in the hands of individuals within the ABC Board’s judgement of what’s immodest or in bad taste is massively silly and certainly a violation of the First Amendment.
The court used four prongs in its ruling, much of it stemming from a prior case concerning beer labels: Bad Frog Brewery, Inc. v. New York State Liquor Authority. And, while the court found in favor of the defendant on the questions of whether Flying Dog’s label should be considered commercial speech (yes), whether the regulation is prior restraint on protected speech (no, because it’s commercial speech, essentially), whether there is legitimate governmental interest for its regulation (yes, because the ABC Board asserted it’s trying to protect children)… well, none of that matters if the 4th prong goes against the state, and here, it absolutely did.
And that question was whether the ABC Board’s decision was narrowly tailored to regulate its legitimate governmental interests. And the court says it very much was not.
Under the fourth prong of the Central Hudson analysis, “the party defending the regulatio must demonstrate narrow tailoring of the challenged regulation to the asserted interest- a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.”‘ Insley, 731 F.3d at 300 (quoting Greater New Orleans Broad. Ass ‘n, 527 U.S. at 188).
From there, the court notes that the State’s refusal of the use of the beer label was not narrowly tailored at all. In fact, it was total and complete. It was as well tailored as an untouched piece of cloth. In addition, the highlights provided by Marc Randazza and Greg Doucette of just how haphazardly and capriciously the ABC Board has been in deploying this regulation lend credence to Flying Dog’s claims.
And, therefore, the regulation is unconstitutional.
Plaintiff has made a sufficient showing that the challenged regulation 1s facially unconstitutional because it is overbroad and otherwise not narrowly tailored to achieve North Carolina’s proffered substantial interest. While the ABC Commission may regulate alcoholic beverage labeling beyond the limits of the definition of obscenity, it must do so in a manner that comports with Central Hudson. See also Flying Dog Brewery, 597 F. App’x at 355 (Supreme Court, Sixth Circuit precedent and persuasive opinion in “Bad Frog Brewery [] should have placed any reasonable state liquor commissioner on notice that banning a beer label based on its content would violate the First Amendment unless the Central Hudson test was satisfied.”).
And there you have it. It’s a hell of a First Amendment win that never should have gotten this far. The ABC Board actually went and approved Flying Dog’s label after the initial lawsuits were filed. But Flying Dog, perhaps true to its name, had sunk its teeth in and wasn’t going to let this go. Nor should it have, because this regulation was really, really in violation of free speech laws.
Filed Under: 1st amendment, abc board, advertisement, beer, beer label, north carolina, offensive, vulgar
Companies: flying dog
The Supreme Court’s decision in The Slants’ trademark case is already beginning to pay off for trademark seekers whose applications were determined to be a bit too racy for the Trademark Office’s (subjective) taste. Section 1052(a) of the US Code used to forbid the registration of trademarks that “disparaged” other persons or groups or anything the USPTO found to be “immoral or scandalous.”
That’s all gone now, thanks to the Supreme Court, which found this restriction to registrations unconstitutional. The Supreme Court struck down the language limiting “disparaging” trademark registrations. The Federal Circuit Court of Appeals has just struck down the remaining limiting language (“immoral or scandalous”), allowing clothing brand FUCT to finally secure federal trademark protection.
Marc Randazza breaks down the entire ruling at Popehat. Here are some of the highlights of the decision [PDF]:
The Brunetti court [rejected] the government’s argument that the “immoral or scandalous” prohibition of Section 2(a) was aimed at commercial speech. The primary test for determining whether a mark is “immoral or scandalous” is if the general public would find the mark “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable; . . . giving offense to the conscience or moral feelings; . . . or calling out for condemnation.” In re Fox, 702 F.3d 633, 635 (Fed. Cir. 2012). The court noted that this restriction is aimed solely at the expressive content of trademarks, rather than their commercial source-identifying function, and necessarily involves moral value judgments. (Decision at 27.) The court could have stopped after this determination, since the government agreed that the “immoral or scandalous” portion of Section 2(a) could not survive strict scrutiny, but it went on to find that the restriction could not survive even intermediate scrutiny.
The decision takes even more pointed shots are the government’s unavailing arguments later in the ruling.
The government’s interest in protecting the public from profane and scandalous marks is not akin to the government’s interest in protecting children and other unsuspecting listeners from a barrage of swear words over the radio in Pacifica. A trademark is not foisted upon listeners by virtue of its being registered. Nor does registration make a scandalous mark more accessible to children. Absent any concerns that trademark registration invades a substantial privacy interest in an intolerable manner, the government’s interest amounts to protecting everyone, including adults, from scandalous content. But even when “many adults themselves would find the material highly offensive,” adults have a First Amendment right to view and hear speech that is profane and scandalous.
[…]
Even if we were to hold that the government has a substantial interest in protecting the public from scandalous or immoral marks, the government could not meet the third prong of Central Hudson, which requires the regulation directly advance the government’s asserted interest. 447 U.S. at 566. As the government has repeatedly exhorted, § 2(a) does not directly prevent applicants from using their marks. Regardless of whether a trademark is federally registered, an applicant can still brand clothing with his mark, advertise with it on the television or radio, or place it on billboards along the highway. In this electronic/Internet age, to the extent that the government seeks to protect the general population from scandalous material, with all due respect, it has completely failed.
This doesn’t end the battle. The government may decided to appeal this decision, lining up this portion of Section 2(a) for a review by the Supreme Court. Or, as Randazza points out, legislators could decide to ruin the registration of bad words for everyone with “for the children” legislation altering the contours of language eligible for trademark protection.
But, for the moment, the First Amendment triumphs over USPTO prudery. Let the F-bomb gold rush begin!
Filed Under: disparaging, immoral, offensive, trademark
Companies: fuct
Here in North America, because 2016 just had to become the most infuriatingly stupid and polarizing year in the history of the multiverse, far too much oxygen was spent on debates over both how much racism was okay on one side and exactly what qualified as racist on the other. It’s one of those frustrating contests with nobody to root for, as half of the population proclaimed that racism was dead and everyone was too stuck up about it while the other side managed to find racism everywhere, introducing into the popular lexicon terms like “privilege” that mostly make me want to put my head in a vice and get to rotating that lever.
Still, this isn’t a debate that should be totally ignored. After all, at its heart is the matter of free speech, not just as a legal framework but also as an ideal that the West tends to claim to hold in high regard. Strangely, one of the beacons of this debate shall now be on the subject of vanity license plates, with a heavy dash of nerd culture thrown in just to make it extra fun. For this story, we go to Winnipeg, where a Star Trek fan received the following vanity plate for his car.
The plate, owned by the unfortunately named Nick Troller, will be instantly recognizable to Star Trek fans, particularly those of us that go back to The Next Generation. The Borg was an alien race that assimilated other races into its hive-mind whatsit and traveled around in big grey cubes, because, you know, aliens. They often communicated such witticisms as “Resistance is futile” and “You will be assimilated.” I imagine to those that are not fans of the series, the vanity plate would probably register as a curiosity. For some in Canada, apparently, it was a racist mantra.
If you’ve existed at all in the modern day political climate you’ll understand how some people who are—rightfully—sensitive to the rise of normalized racism, saw Troller’s plate as problematic. Seeing the plate as a problem some people complained and Manitoba Public Insurance (MPI) told Troller he had to get rid of it. Troller has since relented to the pressure and gotten rid of the plate for one that says “COLECTV”—the plate still has the bracket sporting the “resistance is futile” saying.
Now, in this hyper-partisan time where everyone is either a racist or an SJW and we all hate each other with the burning passion of eight pissed off suns, it’s no wonder that Troller’s license plate has become an issue and that people on both sides have seized upon it. The Justice Centre for Constitutional Freedoms, which is known for taking people to court for denying anti-abortion activists a voice and other free speech issues, now—after advocating for Troller initially—may be taking the case to court.
Ok, let’s just get this out of the way. The license plate isn’t remotely racist and anyone apologizing for some people freaking out and complaining of its racism should stop. Stop and never do that again. For those of us that care about combating actual racism, these hypersensitive offense-magnets are getting in our way and impeding progress, acting as an example for some why real racism is dead. It’s lame and it isn’t to be apologized away.
But it’s also worth noting that something like a vanity plate is plainly a form of speech and having a government strip a citizen of that speech simply because other people are wrong about that speech is flatly insane. Particularly when you have to work really, really hard to convince yourself that the license plate above is racist, and when the acceptable alternative — “COLECTV” — I could easily argue is racist as well were I so inclined. Collecting? Collecting whom, you racist! See?
We can all certainly have an argument over what the current levels of racism are and how they impact our culture or not, but it should be plain that this was a clear case of a government overstepping its bounds.
Filed Under: assimilated, borg, canada, free speech, license plate, nick toller, offensive, overreatcion, star trek, vanity license plate, winnipeg
There are all sorts of different ways that websites that allow comments have dealt with trollish behavior over the years, but I think the BBC’s new policy is the first I’ve seen in which the organization threatens that it may contact your boss or your school (found via Frank Fisher).
The new policy has a short section on “offensive or inappropriate content on BBC websites” where it says the following:
Offensive or inappropriate content on BBC websites
If you post or send offensive, inappropriate or objectionable content anywhere on or to BBC websites or otherwise engage in any disruptive behaviour on any BBC service, the BBC may use your personal information to stop such behaviour.
Where the BBC reasonably believes that you are or may be in breach of any applicable laws (e.g. because content you have posted may be defamatory), the BBC may use your personal information to inform relevant third parties such as your employer, school email/internet provider or law enforcement agencies about the content and your behaviour.
To be fair, it does seem to limit this to cases where it believes you’ve violated the law, but even so, it seems like a stretch to argue that the BBC should be calling your boss to tell on you for being a dipshit online, even if you break the law. We’ve all seen the stories of people actually confronting their own trolls or, better yet, the mothers of their trolls, but to make it official BBC policy seems to be going a bit far. Sure, if someone is breaking a criminal law, informing the police sounds perfectly reasonable, but your boss or your school?
Anyway, I guess be forewarned: if you don’t want the BBC telling your boss you’re a jerk online, maybe don’t be a jerk on the BBC’s website.
Filed Under: boss, comments, defamation, employer, offensive, school, trolling
Companies: bbc
Google is constantly under pressure from all sides to change how it ranks just about everything. There’s a massive SEO industry, a decent portion of which is dedicated into tricking Google into ranking some stuff higher than others (or downgrading content that someone doesn’t like). And, then, of course, there are the “outside” interests. For years, the legacy recording and movie industries would misleadingly blame Google for piracy and demand that it downrank “pirate” links. Google caved in and did so, and the end result has been kind of a mess. Because it’s based on DMCA notices in to Google, the company now gets flooded with an ever increasing number of DMCA notices — many of which are completely bogus (and potentially just designed to mess with search rankings).
On top of that, in cases where it does downrank so-called “pirate” sites, since people are still looking for unauthorized content anyway, they end up going to more dangerous sites, where they’re more likely to get malware. And, of course, as we predicted, despite caving in and giving the RIAA/MPAA a tool to shape search results, those industries still aren’t satisfied. Because they’ll never be satisifed. That’s because they fail to understand that the problem isn’t Google. Google is just a representation of what’s on the internet — and many people on the internet want access to content that is otherwise difficult to get. That’s not Google’s fault.
A couple of years ago, Google also announced that it would allow people to remove “revenge porn” results from search. And you can certainly understand why pretty much everyone would want this as an end result. But, still, once you make that tool available, there’s reason to fear that it, too, will be abused. And even if a company as large as Google may be able to properly staff up to go through and review each request, this only puts pressure on everyone else — including much smaller, less well-staffed, less well-resourced players to do something similar.
And now… for reasons that are unclear, Google has announced that it opened up a tool that will let people report “offensive” results and potentially downrank those results.
With the change, content with racial slurs could now get flagged under a new category called “upsetting-offensive.” So could content that promotes hate or violence against a specific group of people based on gender, race or other criteria.
While flagging something doesn’t directly affect the search results themselves, it’s used to tweak the company’s software so that better content ranks higher. This approach might, for instance, push down content that is inaccurate or has other questionable attributes, thereby giving prominence to trustworthy sources.
Again, at a first pass, this kind of thing absolutely sounds good. We should want better results, and the idea of letting Google’s many millions of users help flag certain sites to be carefully reviewed for “upsetting or offensive” content makes sense. But… again, this definitely seems like the kind of thing that is open to widespread abuse. First off, what is “upsetting or offensive” anyway? That’s a completely subjective standard, and one that we’ve seen people judge very, very differently. Second, what do you do if you really dislike a particular site? You open up a vote-brigade by a bunch of people to label it “upsetting or offensive.” Trump haters can go after Breitbart and Trump supporters can go after the NY Times. Hopefully Google resists those kinds of vote brigading, but just the fact that this kind of tool is open to such abuse is concerning. And, again, when Google does something like this, it puts more pressure on other sites, with many fewer resources, to do something similar or get branded as somehow “supporting” offensive content.
Again, none of this is to say that Google must be promoting “offensive” content. It has the right to create its search results however it wants. But the more tools it opens up to the public to potentially downrank sites, the more the risk is that such tools get widely abused.
Filed Under: downrank, offensive, search, search rankings, vote brigade
Companies: google
The Texas legislature’s proposed cyberbullying bill is gathering more opposition. As we covered here last month, the “for the children” bill was meeting resistance from groups actually concerned about the welfare of the state’s children.
According to the Texas branch of the National Association of Social Workers, the bill would put more students in harm’s way by trimming back counseling and other resources in favor of dumping the problem in the lap of law enforcement. Not only that, but the bill would expand the jurisdiction of school disciplinary procedures to cover actions taken by students off-campus.
The bill has additional problems that need to be addressed before it’s passed, as the EFF points out. One of the more dangerous aspects of the proposed legislation is its presumptive stripping of anonymity. Rather than let a court decide whether the party bringing charges has earned the right to uncover the identity of an online commenter, the law hands that power to the aggrieved person before any legal proceedings have commenced.
The bill authorizes subpoenas to investigate potential legal claims arising from any undefined “injury” to a minor before a lawsuit is ever filed. This new process would threaten the First Amendment right to communicate anonymously on the Internet. This right is especially important for people who belong to unpopular groups or who express unpopular messages, who might otherwise stay silent rather than risk retaliation.
In the hypothetical above, suppose the second student anonymously blogged about the classroom comments of the first student, and concluded, “only a jerk would say this in class.” The first student might try to use the bill’s pre-suit subpoena process to unmask the anonymous blogger, based on the pretext of a highly dubious defamation claim. The risk of unmasking would silence many anonymous speakers.
Courts have allowed these efforts to proceed, but this has usually happened after the injured party has made its case for unmasking. This is the “for the children” aspect of the proposal getting in its own way. By presuming the normal legalities of pursuing the identity of anonymous speakers don’t apply when the victim is a minor, the law’s unintended consequences would harm a greater number of minors who would either be unmasked prematurely or discouraged from participating in online speech.
The EFF has sent a letter [PDF] to the state’s legislature opposing the bill as written. It points out other flaws in the bill’s language that would either chill speech or severely damage the future of minors caught up in its broad language. If the bill passes unaltered, it’s highly unlikely it would survive a constitutional challenge. Too much is left to the discretion of administrators and law enforcement officers employed by schools. The bill says vague things about “rights,” but gives these entities the power to decide whose rights are more equal than others.
The Texas bill would expand the power of school officials to discipline youths for “cyberbullying.” The bill’s vague and overbroad definition of that term would include a single email from one student to another that “infringes on the rights of the victim at school.” Those “rights” are not defined.
School officials might use this new power to silence unpopular speech by the very students that some legislators may wish to protect. Suppose that in a current events class, one student said they oppose gay marriage or Black Lives Matter protesters. Suppose further that in response, the leader of that school’s Gay-Straight Alliance or NAACP chapter sent the first student a critical email that concluded, “I wish you would keep your opinion to yourself.” School officials might determine that the second student’s email infringed on the first student’s right to speak in class, and thus impose discipline for sending the email.
Those who support this sort of legislation like to believe no one involved in enforcing the law would interpret the language in such a ridiculous fashion. But as we’ve seen time and time again, far too many school administrators are capable of interpreting policies and laws in the most unreasonable way possible.
Filed Under: anonymity, cyberbullying, first amendment, free speech, offensive, texas
Confession time: I think memes generally suck. Yes, yes, I know you love them, but when I think of memes, I tend to think of political memes on Facebook that I then have to drop Snopes.com links into the comments on, stupid copyright trolling over them, and that time Axl Rose tried to DMCA a meme so that nobody would see that he dipped into the chocolate fudge too much recently.
Which is why I’m going to move to Indonesia, where the government has decided it’s time to put a strict control policy on any memes it finds offensive, embarrassing or that incite fear.
Its Electronic Information and Transactions Law (ITE) punishes any electronic media communication that incites fear or embarrassment under its defamation article. The public has continuously called for the article’s removal, but instead Indonesia is introducing more restrictions to freedom of expression. Posting memes, texts, pictures, or videos would be punishable if found to have a defamatory or slanderous tone.
And, hey, what could possibly go wrong? After all, nobody actually wants to defend memes that incite fear, or are defamatory or slanderous, do they? And nobody wants to be embarrassed, right? Well, as per usual when it comes to censorship codified in law, the devil is in the nearly complete lack of details.
According to the Indonesian government, this provision stands to prevent and control cyberbullying. But it can further be used as a political tool against opposition during elections. Citizens reproach this act, as there are no clear rules that define what is considered offensive. The government decides and is often ambiguous about it.
Since its implementation in 2008, 200 people have been prosecuted according to data from the Southeast Asia Freedom of Expression Network. Among the most notable cases, was the prosecution of Prita Mulyasari in 2009 for complaining about Omni International Hospital services on an online mailing list.
In other words, by crafting the law in about the most ambiguous manner possible, the Indonesian government can simply make up on the spot what it considers offensive, defamatory, and all the rest. This inoculates them against memes as a political tool. And the idea of a complete dearth of political memes sounds like heaven, except that a government that would ban them is exactly the kind of target for which they would be appropriate.
Dressing up censorship in language to do with stopping offense and fear is an age-old tactic, one that those of us that believe in free speech should not let stand in any corner of the world. Free the meme, Indonesia!
Filed Under: cyberbullying, free speech, indonesia, memes, offensive
We’ve noted a few times in the past our serious concerns about Hillary Clinton’s hawkish and tone deaf views on cybersecurity, in which she wants the US to go on the offensive on cyberattacking, even being willing to respond to attacks with real world military responses. She seems to ignore the fact that the US has a history of being some of the most aggressive players on offense on such things (Stuxnet, anyone?), and doesn’t seem to recognize how escalating such situations may not end well at all.
Of course, her opponent, Donald Trump has been totally incomprehensible on cybersecurity during the course of his campaign. There was his first attempt to respond to questions about cybersecurity in which it’s not clear he understood the question, and started talking about nuclear weapons instead. Or the time he took a question on cybersecurity and answered by talking about the latest CNN poll. Or, of course, who can forget his debate performance on the topic, where his key insights were that his 10 year old was good with computers and a 400 lb. hacker may be responsible for the DNC hacks.
It appears that the Trump campaign finally decided that maybe Trump should say something marginally coherent on the subject, and sent him out earlier this week with a prepared teleprompter speech, which Trump actually managed to get through without going too far off script. And… it’s basically the same kind of bullshit as Clinton — pushing for more aggressive and offensive cyberattacks.
?I will also ask my secretary of Defense and joint chiefs to present recommendations for strengthening and augmenting our Cyber Command,? Trump said of his cybersecurity plan. ?As a deterrent against attacks on our critical resources, the United States must possess, and has to, the unquestioned capacity to launch crippling cyber counterattacks, and I mean crippling. Crippling. This is the warfare of the future. America?s dominance in this area must be unquestioned, and today it?s totally questioned.?
There was also the kind of hilarious claim that the government has not made cybersecurity issues a priority, which is laughable if you’ve been paying attention to, well, anything in the “cybersecurity” policy space over the past few years. You could say that their priorities within that realm are screwed up. Or that the government seems to mainly use “cybersecurity” as a cloak to hide NSA surveillance efforts. But to argue that it’s not been a priority is clearly false.
And, really, having our own side launching “crippling” cyberattacks (as with Clinton’s plan) doesn’t seem like the most effective plan. These kinds of things only escalate. Being an aggressor here seems particularly shortsighted. Taking out, say, China’s internet, may show strength, but for what purpose? Will it really stop Chinese computer attacks on US infrastructure? Doubtful. Cybersecurity is mostly a defensive game, and it should remain that way. Encrypt everything possible. Disconnect critical infrastructure from the wider network wherever possible, and do everything to stop attackers from getting in, taking down, or mucking with systems.
This hawkish talk about offensive attacks in response to inbound online attacks is probably poll-tested to sound good as “being tough,” but it’s really stupid actual policy.
Filed Under: computer security, cyberattack, cybersecurity, cyberwar, donald trump, hillary clinton, offensive
Every so often, we see (probably) well-intentioned, but incredibly stupid, attempts to “fight” online harassment and bullying through laws that make saying things that are “offensive” against the law. In the US, such laws (if they actually get passed) are usually thrown out once someone makes a First Amendment challenge over them, but elsewhere in the world there’s no First Amendment to fall back on. Over in Italy, some officials have proposed what may be one of the dumbest such laws in history, written so broadly that it will outlaw a lot more than the kind of “cyberbullying” it’s supposedly intended to combat:
Under the proposed law, the “site manager” of Italian media, including bloggers, newspapers and social networks would be obliged to censor “mockery” based on “the personal and social condition” of the victim — that is, anything the recipient felt was personally insulting. The penalty for failing to take action is a fine of €100,000. Truthfulness is not a defense in suits under this law — the standard is personal insult, not falsehood.
Yes, mockery on the internet could get you a €100,000 fine. Mockery. The internet. The internet is made for mockery. And now is the time that everyone should be mocking this idiotic law — and the politicians who proposed it without having the slightest idea of how such a thing would be abused all the time. As Cory Doctorow at BoingBoing notes:
… what it will do is create a tool for easy censorship without due process or penalty for misuse. The standard proposed in the bill is merely that the person on the receiving end of the argument feel aggrieved. Think of the abuse of copyright takedowns: online hosts already receive millions of these, more than they could possibly evaluate, and so we have a robo-takedown regime that lets the rich and powerful routinely remove material that puts them in an unflattering light.
As bad as that is, at least it makes censorship contingent on something specific and objective: copyright infringement, which has a wealth of caselaw defining its contours. Indeed, so much that you need to be a trained expert to adjudicate a claim of infringement. But at least you can objectively assess whether a copyright infringement has taken place.
The standard set by the proposed Italian law allows for purely subjective claims to be made, and for enormous penalties to be imposed on those who question them before undertaking sweeping acts of censorship.
There are some efforts under way to “improve” the law by making it not quite so draconian, but maybe, just maybe, the “improvement” should be to recognize that you’re never going to successfully outlaw mockery on the internet.
Filed Under: censorship, free speech, harassment, internet, italy, mocking, offensive, takedowns
We’ve talked quite a bit around here about the saga of the Washington Redskins trademark cancellation. The long-held mark by the football team was cancelled after a group of Native Americans petitioned against it, claiming that the team’s name was disparaging of their people. After I, dare I say, flip-flopped from cheering on the cancellation to having the team itself change my mind with a delightfully vulgar ruling, which demonstrated that the USPTO grants all kinds of marks on “offensive” terms, the current status of the trademark remains cancelled. Well, the team has now appealed to the US Supreme Court, not only seeking to have its own case reviewed, but also seeking to tie their case to another that we’ve talked a bit about, that of the Asian music group, The Slants.
The Slants’ case is different from the Redskins’, with the music group never getting its trademark registration, also based on the notion that its name was disparaging of the very group of people who comprised the band. An appeals court declared the refusal of the band’s trademark applications was a First Amendment violation, rightly. But the USPTO has appealed to the Supreme Court. The Redskins, meanwhile, have petitioned the Supreme Court to take the two cases in tandem, arguing that the slight differences between the two would give the court a well-rounded look at the question of whether blocking disparaging trademarks was a constitutional violation.
If this Court grants certiorari in Tam, the Court should grant certiorari before judgment here to consider this case as an ideal and essential companion to Tam. This Court repeatedly has granted certiorari before judgment on those occasions, like this one, when the consideration of complementary companion cases offers the best way to decide important questions of constitutional law. As the government acknowledges,
this case squarely presents the same First Amendment question presented in Tam, a question of undeniable, fundamental national importance.
Tam is the short-form reference to The Slants’ case. It’s a savvy move by the team, seeking to pair its case with that of The Slants, who by any measure ought to be seen as deserving of more sympathy generally than the football club. After all, there does seem to be a difference in texture between a group of Asian people who want to call their band The Slants and a football team owned by Dan Schneider that wants to have an admittedly racist term for Native Americans serve as its team’s name. But the question of law is certainly similar enough that I would agree it would make sense to review both cases together. Under the law, either refusing marks based on disparagement is constitutional or it isn’t. There’s no provision for who is applying for, or holding, the trademark in question.
Another reason it’s a savvy move by the Redskins is that The Slants are coming into the SCOTUS review having won its appeal. In their case, it’s the USPTO doing the appealing to SCOTUS. The team likely sees the band having an easier time getting a win before the court, having won on appeal, and is arguing that if The Slants’ case holds up, then the cancellation of the team’s trademark would make no sense.
And the Redskins are right. The team’s name may be antiquated, but under the law, the government has no business applying its schizophrenic sense of morality to speech under the First Amendment.
Filed Under: first amendment, free speech, offensive, redskins, scotus, slants, supreme court, trademark
Companies: washington redskins
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