Monthly Archives: June 2017

Ned Snow is a professor of law at the University of South Carolina School of Law.

In Matal v. Tam (formerly called Lee v. Tam), the Supreme Court ruled unconstitutional the disparagement clause of the Lanham Act, which prevents registration of marks that employ disparaging names. The linchpin of its opinion is the conclusion that the disparagement clause constitutes viewpoint discrimination. Secondarily, the court relies on the argument that the disparagement clause does not support the governments interest in regulating speech. As I explain below, these arguments are unconvincing. Finally, the court articulates a broader policy concern of upholding restrictions that directly suppress speech in the commercial marketplace. That concern, I argue, is unfounded for the disparagement clause.

Viewpoint discrimination

Viewpoint discrimination is simple to understand (although sometimes difficult to apply): It occurs when the government prohibits a particular view or takes a position rather than prohibiting a general category or subject matter of speech. At first blush, the disparagement clause seems to prohibit only a general category of speech rather than a particular viewpoint: The clause does not adopt a position, indiscriminately applying to all hate speech, regardless of which person or institution a mark might disparage. Yet the court sees it differently. Justice Samuel Alito explains that a prohibition of all disparaging views is still a prohibition of viewpoints. In his words: Giving offense is a viewpoint. And Justice Anthony Kennedy further explains: To prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so. Apparently, then, prohibiting all positions on a subject matter is just as viewpoint discriminatory as prohibiting only one. End of case, or so it would seem.

But this rationale is troubling. It calls into question other fundamental provisions of the Lanham Act. The Lanham Act prohibits registration of marks that both provide truthful information and make subjective assertions about their products. More specifically, the Lanham Act prohibits registration of marks that are generic descriptions of goods, that are specific descriptions of characteristics of goods, that are surnames (even of the source), and that indicate the geographic origin of a good. (Some of these types of marks may gain trademark protection over time and through an expensive showing of secondary meaning, but for purposes of viewpoint-discrimination analysis, the fact that they are denied in the absence of these circumstances is all that matters.) In short, the Lanham Act specifically prohibits applicants from telling truthful information and making claims about a good or its source. Are these provisions of the Lanham Act viewpoint discriminatory? According to Alitos reasoning, it would seem so: Telling the truth is a viewpoint a viewpoint, incidentally, that is much more central to the purpose of the First Amendment than is hate speech. And according to Kennedys reasoning: [t]o prohibit all sides from [making claims about their products] makes a law more viewpoint based, not less so, suggesting that a blanket prohibition of descriptive truths is viewpoint discriminatory. According to the reasoning of the Tam court, the Lanham Acts provisions that bar registration for truthful content would seem viewpoint discriminatory.

Consider also the Lanham Acts prohibition of government symbols. Section 2 of the Lanham Act bars trademark protection for any mark that [c]onsists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof. Last time I checked, preventing someone from expressing his patriotism by displaying the United States flag constituted an abridgement of free speech. Under the courts reasoning, the Lanham Acts prohibition of trademark registration for government symbols would be viewpoint discriminatory.

How, then, is a prohibition against disparaging speech any more viewpoint discriminatory than the other prohibitions in the Lanham Act? Stated differently, what principle dictates the viewpoint distinction between the disparagement clause and the other criteria for trademark eligibility? I dont see it. The disparagement clause cannot be viewpoint discriminatory for the simple reason that if it were, it would imply the viewpoint-discriminatory nature of other fundamental registration criteria.

Limited public forum

Why does it matter whether the discrimination is based on viewpoint or subject matter? Alito explains that if the discrimination were not viewpoint based, it might be justified under the limited-public-forum doctrine. Congress has created a public forum the trademark registration system to facilitate private speech, and as a result, the trademark system appears to constitute a limited public forum. In such a metaphysical forum, Congress may impose content-based restrictions that are viewpoint neutral, to the extent that the restrictions support the purpose of the forum. The disparagement clause, then, would be permissible to the extent that it supports the purpose of the trademark system, which I address below in discussing commercial-speech regulation.

Commercial speech regulation

Tellingly, Alito does not rely solely on viewpoint discrimination to condemn the disparagement clause. He analyzes the clause under the test for commercial-speech regulation. Key to this analysis is the government interest in regulating speech. Stated another way: What is it about the context of trademark law that would justify Congress in withholding registration from a disparaging mark? One interest is the orderly flow of commerce. That seems reasonable, given that hate speech does tend to interfere with people engaging in commercial transactions. Alito, however, argues that the statute is not narrowly tailored to this interest, so as to prevent only the sort of invidious discrimination that would disrupt commerce. That is debatable. Arguably, the court could interpret the disparagement clause narrowly, to avoid an unconstitutional interpretation.

Putting aside the orderly-flow-of-commerce interest, the court failed to recognize another important government interest underlying the disparagement clause: the interest in facilitating a peaceful society among citizens of disparate backgrounds and beliefs. A system of commerce that invites all to participate is integral to the fabric of a peaceful society. Religion, ideology and political party all yield to the commercial transaction of buyer and seller cooperating. Disparaging marks threaten this benefit of commerce. Disparaging marks work against universal cooperation in the marketplace. They facilitate an environment of exclusion. They promote disrespect rather than cooperation. Commercial offers for sale, which are supposed to facilitate universal cooperation, become a means to promote disrespect towards others. Simply put, disparaging marks contravene the critically important social benefit of a commercial system. Preventing those marks serves the underlying and broad purpose of commerce generally.

Thus, I am doubtful about the doctrinal underpinnings of the Tam decision. Its rationale for viewpoint discrimination appears weak when compared with the Lanham Acts other discriminatory criteria for trademark registration. Similarly, the disparagement clause appears justifiable as a commercial-speech regulation because it supports the governments interest in facilitating universal participation in the commercial marketplace.

Speech suppression in the commercial marketplace

All this being said, the court does raise an understandable concern. Alito frankly voices that concern:

The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social volatility, free speech would be endangered.

It would seem, then, that the court is fearful that protected and valuable speech could be suppressed merely by labeling it as commercial. What if Congress passed a law that prohibited any critical speech in commercial print? Would the commercial nature of the speech justify such broad content-based regulation? First is a ban on disparaging trademarks, and next is a ban on The New York Times. Loudly the court opines that commerciality does not justify prohibitions on speech that permeates public life in this particular instance, trademarks.

This concern makes sense to a point. Certainly we must avoid suppressing ideas in the name of facilitating commerciality. Unconstitutional speech suppression might arise were Congress to withhold money, impose a fine or affix criminal penalties in response to speech content. But none of these acts of speech suppression is present here. Indeed, according to the court, the benefit of trademark registration is not the same as a cash subsidy or its equivalent. The benefit of registration lies entirely in the commercial realm, thereby limiting the influence of the disparagement clause to that commercial realm. For that matter, withholding registration does not prevent financial success in the commercial marketplace. Even without registration, a disparaging mark can still serve as a trademark. It can still identify source. And owners of disparaging marks can still fully participate in the commercial marketplace. So although a disparaging mark would lack the commercial benefit of registration, that mark could still succeed both financially and philosophically in the marketplace of ideas. Speech suppression is not occurring here.

In sum, Congress should be able to reward civility in commercial discourse. A society can both appreciate the value of contrary and even hateful ideas and at the same time reward commercial speakers who choose to engage civilly. There is neither suppression nor viewpoint discrimination when the people choose to reward civil discourse in commercial transactions.

Posted in Matal v. Tam, Symposium on the court's ruling in Matal v. Tam, Featured

Recommended Citation: Ned Snow, Symposium: The First Amendment silences trademark, SCOTUSblog (Jun. 20, 2017, 12:43 PM), http://www.scotusblog.com/2017/06/symposium-first-amendment-silences-trademark/

Go here to read the rest:
Symposium: The First Amendment silences trademark - SCOTUSblog (blog)

From todays opinion by Justice Samuel Alito (for four justices) in Matal v. Tam, the Slants case:

[The idea that the government may restrict] speech expressing ideas that offend strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.

Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:

A law found to discriminate based on viewpoint is an egregious form of content discrimination, which is presumptively unconstitutional. A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the governments benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

And the justices made clear that speech that some view as racially offensive is protected not just against outright prohibition but also against lesser restrictions. In Matal, the government refused to register The Slants as a bands trademark, on the ground that the name might be seen as demeaning to Asian Americans. The government wasnt trying to forbid the band from using the mark; it was just denying it certain protections that trademarks get against unauthorized use by third parties. But even in this sort of program, the court held, viewpoint discrimination including against allegedly racially offensive viewpoints is unconstitutional. And this no-viewpoint-discrimination principle has long been seen as applying to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more.

(Justice Neil Gorsuch wasnt on the court when the case was argued, so only eight justices participated.)

Asian-American dance rock band The Slants talk about their Supreme Court case, including a supporter they'd rather not have: Dan Snyder. (Gillian Brockell,Jesse Rosten/The Washington Post)

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Supreme Court unanimously reaffirms: There is no 'hate speech ... - Washington Post

When Zachary Wood arrived at Williams College his freshman year, he had high hopes for an academic environment that challenged his views. Now going into his senior year, Wood says he has faced backlash from students and administrators for inviting controversial speakers to campus.

Wood appeared before the Senate Judiciary Committee on Tuesday, part of a panel discussing free speech on college campuses.

Wood describes himself as a liberal Democrat, but he brought provocative speakers representing diversepolitical ideologies to campus. He wanted to expose students to ideas they disagree with.

One such speaker invitation prompted the Williams College administration to cancel the event and revise the campus speaker policies.

Wood said this was impermissible, undemocratic, and antithetical to the intellectual character of the college

Williams College is not alone in disinviting speakers. The Foundation for Individual Rights in Education (FIRE) has tracked attempts to disinvite college speakers since 2000. It documented an upward trend. In 2016, FIRE recorded 43 incidents in which students or administrators attempted to cancel a planned speech.

Senator Ted Cruz lambasted college administrators for acting as speech police.

If universities become homogenizing institutions that are focused on inculcating and indoctrinating rather than challenging, we will lose what makes universities great, Cruz said.

The issue of disinviting speakers gained national attention in February when violent protests broke out at the University of California, Berkeley in response to a scheduled talk by alt-right provocateur Milo Yiannopoulos.

More recently, Berkeley cancelled a talk by commentator Ann Coulter amid more threats of protest.

Ranking Democrat Sen. Dianne Feinstein pointed to these violent demonstrations as justification for college administrators cancelling speeches. The senator from California said university police forces often do not have the training and resources needed to handle these situations.

Feinstein argued that Berkeley has a right to protect its students from demonstrations once they become acts of violence.

While there was consensus among panel members on the importance of free speech on campus, the issue came to the application of that right in practice.

UCLA Law professor Eugene Volokh said it was important to punish violent protesters to ensure that they dont continue to disrupt speeches. He said this will sometimes require bringing in more law enforcement.

If you violate the law and by this I mean laws against vandalism, laws against violence, laws against physically shouting people down, then in that case you will be punished rather than having your goals be achieved, Volokh said.

Feinstein pushed back on the suggestion of more law enforcement to control college protests. She asked whether any lessons were learned fromthe 1970 Kent State shooting, in which Ohio National Guardsmen shotand killed four students and injured nine others.

Frederick Lawrence, secretary and CEO of the Phi Beta Kappa Society, said colleges must start with a strong presumption in favor of the speech but make judgements based on the circumstances. As a former president of Brandeis University, Lawrence said it is greatly exaggerated to expect colleges to have the resources to deal with all types of violent protests.

Lawrence said that no matter the speakers beliefs, colleges should find ways to host the event. He suggested making speeches private events if needed, closed to people outside the university community.

Over the past few months, several states have taken up the issue of free speech on campus. A bill passed the North Carolina House in April that would ensure public universities be open to all speakers. It also would require sanctions on protesters who disrupt events.

Panelist Floyd Abrams, a prominent First Amendment lawyer, said he was apprehensive about state legislatures getting too close to the university campuses. Abrams said state legislatures should not dictate what colleges can teach or cannot teach.

On the federal level, a bipartisan resolution calling for the protection of free speech was introduced in the U.S. House of Representatives in May. If passed, the resolution would condemn university free speech zones and restrictive speech codes. The Senate does not have any similar legislation.

Calling himself a small government guy, Sen. Ben Sasse said he wants to see as little of this adjudicated by coercion and power and possible. The Nebraska senator and former college president called on college administrators to defend free speech on their campuses.

Following the hearing Sen. John Kennedy agreed with Sasse, making clear to reporters that federal intervention was not needed to solve the problem.

I dont want the government to have to come in and say this is acceptable and this isnt, Kennedy said. I want a university president to do his job and to have the guts to do it. And if he cant do it he ought to quit.

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Balancing the First Amendment and Students' Safety - Roll Call

On Monday in Packingham v. North Carolina,the justices unanimously (minus Gorsuch) voted to invalidate a North Carolina statute making it a felony for a registered sex offender to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages. But Justice Alito, joined by Roberts and Thomas, concurred only in the judgment. All eight Justices agreed that the statute wasnt sufficiently tailored. Both opinions emphasized the possible application of the statute to Amazon.com, washingtonpost.com, and webmd.com.

So where did the opinions differ? The central disagreement between the two opinions is how judges applying the First Amendment should respond to the changing nature of cyberspace. From the majority:

While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

And from the concurrence:

The Court is correct that we should be cautious in applying our free speech precedents to the internet. Ante, at 6. Cyberspace is different from the physical world, and if it is true, as the Court believes, that we cannot appreciate yet the full dimensions and vast potential of the Cyber Age, ibid., we should proceed circumspectly, taking one step at a time. It is regrettable that the Court has not heeded its own admonition of caution.

The majoritys point that that what [courts] say today might be obsolete tomorrow is an important one that I discussed in the Internet context almost 20(!) years ago in Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process.

But I want here to highlight a slightly different point. When it comes to changing phenomena (like cyberspace), what is the best default position with respect to the First Amendment? Should judges err on the side of starchy application of free speech tests, or a more flexible approach? This are not new questions. For instance, back in 1996, in Denver Area Education Telecommunications Consortium, Inc. v. FCC, the Supreme Court considered regulation of indecency on public access and leased access channels. Justice Souter wrote a concurrence suggesting that, in the fast-changing world of telecommunications, judges should heed the admonition First, do no harm. Justice Kennedy responded: Justice Souter recommends to the Court the precept, First, do no harm. The question, though, is whether the harm is in sustaining the law or striking it down. As I noted in a different article, the injunction [f]irst, do no harm provides little guidance unless we can identify what the do no harm position is.

In Mondays case, Justice Kennedys majority opinion, consistent with his concurrence in Denver Area and his First Amendment jurisprudence more generally, treats broad and rigorous application of First Amendment tests as the do no harm position in the ever-changing world of cyberspace. Justice Alitos concurrence wants a default that takes smaller steps and gives judges (and thus legislatures) more flexibility. Obviously there is no ineluctable answer here. But, once again, baselines are doing a lot of work.

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What is the 'do no harm' position on the First Amendment in cyberspace? - Washington Post

David Jadon 2:39 p.m. ET June 20, 2017

David Jadon(Photo: CONTRIBUTED PHOTO)

After more than a month of bad decisions, Indian River County School administrators finally have displayed some smarts. It took an honors student's steadfast belief in the First Amendment, and worldwide attention, to make it happen.

That honors student J.P. Krause, a top student, rising seniorand the winner of the vote for Vero Beach High School's senior class presidency never knew what hit him. His classmates in hisAdvanced PlacementU.S. History class asked him to give a speech in support of his campaign, and his teacher encouraged him to do so. He gave a lighthearted, 2016 presidential campaign-inspired, 90-second speech, and his classmates laughed.

Krause said he was for liberty while his opponent was for higher taxes. He said he was opposed to the rival high school Sebastian River, and his opposing candidate was for it. Krause proposed building a wall between the two schools and making the other school pay for it. Joy Behar of "The View" later said on national television that J.P.'s off-the-cuff speech was "smart."

MORE |Superintendent overturns principal's call on Vero Beach High School class election

"Smart" Behar had that right. Indeed, the very next day after the speech the day of the election Krause represented Vero Beach High in a national academic competition. He came in 10th individually while his Vero Beach team came in third nationally.

Smart.

Unfortunately, Krause had no idea trouble was afoot back at home. School administrators had learned of his campaign speech and decided it amounted to harassment. Of course, Krause had not harassed anyone in the speech, and anyone who saw the videoand knew Krauseknew he didn't and wouldn't have done so.

The principal disqualified Krause from the officeKrausewon fair and square, and punished him to boot. To add insult to injury, the principal decided the campaign speech should be entered into Krause's permanent disciplinary record as harassment.

Not so smart.

Laurence Reisman: Trump effect puts international spotlight on Indian River County school issue

When Larry Reisman of this newspaper heard about Krause, he wrote about the unfairness of the situation. Reisman called attention to the fact that Krausehad First Amendment rights the school did not consider. Pacific Legal Foundation, for whom I am working as a summer clerk, then got wind of it. Pacific Legal represents individuals and businesses when the government violates their constitutional rights. Punishing Krause for his humorous campaign speech clearly violated Krause's First Amendment rights.

Our Founding Fathers did not design the First Amendment to protect feelings. While under certain circumstances schools have the right to punish or censor student speech, this case did not fit those circumstances. Courts have ruled that school policies that go too far to censor speech are unconstitutional. So it is here.

A classmate had recorded the speech; the video demonstrated beyond dispute the school had wronged Krause.

Within days, the entire world had seen the video. Those on the left side of the aisle, including Whoopi Goldberg and Behar on "The View," and those on the right, including "Fox & Friends" and National Review, all sided with Krause. So did Univision, the New York Daily News and the London Daily Mail. The world took his side because reasonable people on the left, right and center know the First Amendment provides the bedrock for all of our freedoms.

The global attention finally caused some smarts at the local schoolhouse.

Sadly, this local uproar exemplifies a broader phenomenon across the country, where different viewpoints are censored or restricted by both college and high school administrators. The Founding Fathers and First Amendment scholars have recognized the importance of the "marketplace of ideas." Without it, free speech cannot truly exist.

Upon entering college, campuses greet students with free speech zones, oppressive speech regulations, banned speakers, safe spaces and censorship.Once the epicenter of discussion, debate and learning, campuses have become segregated intellectually, no longer challenging students to stand up, speak and engage civilly with one another.

Americans of all political stripes must speak up to put a stop to this nonsense.

J.P. Krause did nothing wrong. To the contrary, he is a champion of the First Amendment, standing up for his right to speak when so many others would bow down. Vero Beach High School should be proud of its new senior class president. The rest of the world is.

David Jadon, a summer law clerk at Pacific Legal Foundation, is a rising third-year law student at the University of Florida College of Law. Pacific Legal Foundation is representing J.P. Krause free of charge in his dispute with the Indian River County School Board.

Read or Share this story: http://www.tcpalm.com/story/opinion/contributors/2017/06/20/guest-column-first-amendment-wins-vero-beach-high-school/411648001/

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Guest column: National debate leads to First Amendment smarts at Vero Beach High School - TCPalm

Be careful not to skim over potential First Amendment challenges to commercial speech regulations in labeling cases. By whey of example, the Eleventh Circuit recently found that the actions of the Florida Commissioner of Agriculture and the Chief of the Florida Bureau of Dairy Industry violated Ocheesee Creamery LLCs First Amendment rights related to the labeling of its products.Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228 (11th Cir. 2017).

Ocheesee Creamery is a dairy company that produces milk and other dairy products. One such product is an all-natural, additive-free 100% skim milk, which Ocheesee Creamery labels as skim milk on the product packaging.

Florida law restricts the sale of milk and other milk products not classified as Grade A products. A Grade A designation requires that any vitamin A that is lost or removed from a product during the skimming process be replaced. Because Ocheesees product did not qualify for this Grade A designation, the state of Florida notified Ocheesee that its all-natural skim milk did not meet the definition of milk and, thus, Ocheesee could only sell this product if it was labeled as imitation skim milk. Ocheesee refused since the only ingredient in its product was, in fact, skim milk. Ocheesee also refused to add vitamin A back into its all-natural product. Ocheesee Creamery filed a lawsuit challenging this restriction in the Northern District of Florida, which found in favor of the State.

On appeal, the Eleventh Circuit applied the Supreme Courts test for evaluating restrictions on commercial speech, which was set forth inCentral Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). UnderCentral Hudson, a court considering a restriction on commercial speech must first determine whether the speech is protected under the First Amendment. The First Amendment protects commercial speech unless it 1) concerns unlawful activity or 2) is false or inherently misleading. The Eleventh Circuit found that neither of these exceptions applied to Ocheesee in this case.

First, the Eleventh Circuit held that Ocheesees use of the term skim milk on its product label was not unlawful because the states position was that under Florida law Ocheesee could call its product skim milk as long as the label also indicated that the product was imitation milk. Second, the Eleventh Circuit held that Ocheesees use of the term skim milk was not inherently misleadingor even, according to the Court, potentially misleadingbecause it was a statement of objective fact. As a result, the Court concluded, Ocheesees commercial speech on its all-natural skim milk label was constitutionally protected.

The Court then proceeded to applyCentral Hudsonsthree-pronged intermediate scrutiny test. Under this test, the Court must determine: 1) whether the asserted governmental interest is substantial; 2) whether the regulation directly advances the governmental interest asserted; and 3) whether it is not more extensive than is necessary to serve that interest.

The Eleventh Circuit focused its analysis on the third prong of the test, finding that Floridas restriction is clearly more extensive than necessary to achieve its goals. The Eleventh Circuit noted that there had been extensive negotiations between Ocheesee and the State concerning the language used on Ocheesees all-natural skim milk label, and pointed out that numerous less burdensome alternatives existed and were discussed by the State and the Creamery during negotiations that would have involved additional disclosure without banning the term skim milk. Consequently, the Court concluded that the restriction was more extensive than necessary to achieve the goals of preventing deception and ensuring adequate nutritional standards. The Court thus concluded that Floridas restriction of Ocheesees commercial speech violated the First Amendment and vacated the district courts grant of summary judgment in favor of the State.

The Eleventh Circuits decision offers some reassurance to companies that the First Amendment provides some protection for objectively truthful descriptions of their products, even in the face of restrictions imposed by various state labeling laws, although this protection continues to be balanced against the state interests served by these laws.

2017 Proskauer Rose LLP.

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Eleventh Circuit Does Not Skim Over First Amendment Concerns in Labeling Milk - The National Law Review