Official Google Webmaster Central Blog – Connect to job seekers with Google Search “At Google I/O this year, we announced Google for Jobs, a new company-wide initiative focused on helping both job seekers and employers, through collaboration with the job matching industry. One major part of this effort is launching an improved experience for job seekers on Google Search. We’re happy to announce this new experience is now open for all developers and site owners. For queries with clear intent like [head of catering jobs in nyc] or [entry level jobs in DC], we’ll show a job listings preview, and each job can expand to display comprehensive details about the listing:
For employers or site owners with job content, this feature brings many benefits:
- Prominent place in Search results: your postings are eligible to be displayed in the in the new job search feature on Google, featuring your logo, reviews, ratings, and job details.
- More, motivated applicants: job seekers can filter by various criteria like location or job title, meaning you’re more likely to get applicants who are looking exactly for that job.
- Increased chances of discovery and conversion: job seekers will have a new avenue to interact with your postings and click through to your site.
…Job search is an enriched search experience. We’ve created a dedicated guide to help you understand how Google ranking works for enriched search and practices for improving your presence…”
“Amazon Polly is a service that turns text into lifelike speech. Amazon Polly lets you create applications that talk, enabling you to build entirely new categories of speech-enabled products. Amazon Polly is an Amazon AI service that uses advanced deep learning technologies to synthesize speech that sounds like a human voice. Amazon Polly includes dozens of lifelike voices across a variety of languages, so you can select the ideal voice and build speech-enabled applications that work in many different countries. Amazon Polly delivers the consistently fast response times required to support real-time, interactive dialog. You can cache and save Amazon Polly’s speech audio to replay offline or redistribute. And Amazon Polly is easy to use. You simply send the text you want converted into speech to the Amazon Polly API, and Amazon Polly immediately returns the audio stream to your application so your application can play it directly or store it in a standard audio file format, such as MP3. With Amazon Polly, you only pay for the number of characters you convert to speech, and you can save and replay Amazon Polly’s generated speech. Amazon Polly’s low cost per character converted, and lack of restrictions on storage and reuse of voice output, make it a cost-effective way to enable Text-to-Speech everywhere…”
William Turton, The Outline – Leaked recording: Inside Apple’s global war on leakers – Former NSA agents, secrecy members on product teams, and a screening apparatus bigger than the TSA.
“A recording of an internal briefing at Apple earlier this month obtained by The Outline sheds new light on how far the most valuable company in the world will go to prevent leaks about new products. The briefing, titled “Stopping Leakers – Keeping Confidential at Apple,” was led by Director of Global Security David Rice, Director of Worldwide Investigations Lee Freedman, and Jenny Hubbert, who works on the Global Security communications and training team. According to the hour-long presentation, Apple’s Global Security team employs an undisclosed number of investigators around the world to prevent information from reaching competitors, counterfeiters, and the press, as well as hunt down the source when leaks do occur. Some of these investigators have previously worked at U.S. intelligence agencies like the National Security Agency (NSA), law enforcement agencies like the FBI and the U.S. Secret Service, and in the U.S. military. The briefing, which offers a revealing window into the company’s obsession with secrecy, was the first of many Apple is planning to host for employees. In it, Rice and Freedman speak candidly about Apple’s efforts to prevent leaks, discuss how previous leakers got caught, and take questions from the approximately 100 attendees…”
Memory Supplements – Clarifying FDA and FTC Roles Could Strengthen Oversight and Enhance Consumer Awareness
Memory Supplements: Clarifying FDA and FTC Roles Could Strengthen Oversight and Enhance Consumer Awareness, GAO-17-416: Published: May 16, 2017. Publicly Released: Jun 15, 2017.
“Memory supplements—dietary supplements claiming to improve memory—are a growing market, with sales estimated at $643 million in 2015, almost double 2006 sales. FDA and FTC share oversight of memory supplement marketing—labeling and advertising claims—but generally do not approve claims before products are marketed. GAO was asked to review memory supplement marketing and oversight. This report examines (1) how memory supplements are marketed and the extent marketing targets older adults and may violate federal requirements; (2) related enforcement and outreach actions taken by FDA and FTC; and (3) challenges to agency oversight. GAO reviewed five types of media (Internet, television, among others) to identify examples of memory supplement marketing practices and potential violations of federal requirements. GAO selected these channels using demographic and survey data relevant to older adults. GAO analyzed FDA and FTC data on enforcement actions for fiscal years 2006 through 2015—the most recent data available. GAO also reviewed relevant agency oversight policies, interviewed agency officials, and interviewed selected consumer and industry groups…GAO recommends that FDA and FTC provide additional guidance to consumers clarifying the agencies’ differing roles in their shared oversight of memory supplement and other dietary supplement marketing on the Internet. The two agencies concurred with GAO’s recommendation.”
Irina D. Manta is a professor of law and Founding Director of the Center for Intellectual Property Law at the Maurice A. Deane School of Law at Hofstra University. Her trademark and other legal scholarship is available here.
In Matal v. Tam, the Supreme Court finally gave its answer to a question long debated in the intellectual property world: Is a prohibition on registering disparaging trademarks a violation of free speech under the First Amendment? All eight justices who took part in the case (everyone except Justice Neil Gorsuch) concluded that the answer to that question is a resounding yes. As an amicus brief that I joined also explained, the ban on disparaging trademarks is indeed a form of unconstitutional viewpoint discrimination.
Although the outcome of the case is certain to affect the enduring litigation involving the Washington Redskins trademark, the plaintiff in Tam was more sympathetic than the football team. Simon Tam sought to register the name “The Slants” as a way to reclaim a term that had been used to insult members of the Asian–American community for many years. The Supreme Court certainly did not endorse all of Tam’s arguments – such as his attempt to distinguish between “persons” and groups under the Lanham Act – but the main argument that trademarks are private rather than government speech succeeded.
Justice Samuel Alito does not mince words on this topic in rejecting the claim that trademarks are a form of government speech, writing: “If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.” He goes on to list trademarked statements that would represent dubious advice on the part of the government (such as “make.believe” by Sony), and juxtaposes marks with contradictory statements (like “Capitalism Is Not Moral, Not Fair, Not Freedom” and “Capitalism Ensuring Innovation”). Alito explains how the world of trademarks cannot be likened to other forms of government speech in which the state seeks to promote a specific message, such as the encouragement of beef-product consumption at issue in Johanns v. Livestock Marketing Association. It is noteworthy that all the justices joined this part of the opinion.
As Alito’s opinion recognizes, the claim that trademarks by necessity bear a form of government imprimatur is highly troubling. If anything, removing the disparagement clause eliminates any lingering doubt as to whether the government endorses some messages over others when deciding which trademarks to issue. To those who question how the government can possibly be tolerant of – in the legal sense of giving trademarks to – racist or homophobic statements that otherwise meet the requirements of the Lanham Act, Alito would respond that “[g]iving offense is a viewpoint” and hence deserves the same level of protection as all other opinions.
This case also rejects the idea that the government can limit what trademarks to register based on precedent holding that it can decide what monuments to include in its parks. Alito indicates that the speech embodied in government-owned entities like parks, which includes speech conveyed through monuments, can be viewed by the public as part of a government message in ways that trademarks are not. Alito also underlines a distinction based on the greater rivalrousness of tangible resources. Because the space in public parks is limited, the government must choose what to include, but our trademark registers can accommodate a near-infinite number of marks.
The opinion is also deeply suspicious of the possibility that the government could use methods similar to the bar on disparaging trademarks to make distinctions as to who should be allowed to register a copyright. After all, what is a copyright registration but a legal right that attaches and creates additional protections and remedies against infringement in ways similar to trademark registration? The idea that this could occur in copyright is not far–fetched. Indeed, in the early 1940s, the Register of Copyrights stated that registration could be refused for obscene materials. The attorney general wrote in the late 1950s that the boundaries of the Register’s authority in that area were unclear, and the Register ultimately reversed course. The Supreme Court’s decision in Tam sends a strong warning to government actors who seek to limit the rights of authors based on the viewpoints expressed in their writings.
Although Section 2(a) of the Lanham Act prohibits not just “disparaging,” but also “scandalous” or “immoral” marks, the Tam case deals directly only with the disparagement proviso. Nonetheless, given the reasoning of the opinion, it is very likely that the “scandalous or immoral” bar cannot survive Tam. For one thing, it is not clear at this time whether the government will even claim that this distinction is viable. For example, in a pending case at the U.S. Court of Appeals for the Federal Circuit, the government conceded that under the Federal Circuit’s opinion in Tam (which the Supreme Court just affirmed), the “scandalous or immoral” proviso could not stand. And although the government reserved the right to argue that the provisions should be subject to different legal tests, that would appear to be a very tough road to hoe.
In addition to fairly strong language in the Tam opinion, the government, should it choose to defend the “scandalous or immoral” bar, would have to grapple with some relatively problematic history. Over time, a number of the trademarks that were denied registration for being “scandalous or immoral” involved religious content. In the 1930s, for example, registration was denied for the mark “Madonna” for wine. The specter of viewpoint discrimination, and for good measure the free exercise clause, looms just as large in this context as in that of disparagement. In both cases, the government would be policing which attempted mental associations are deemed permissible and which are not. Furthermore, given the vagueness of these terms, the application of the law to facts has been inconsistent at best. Indeed, the one statement that Alito’s opinion makes about these types of marks, in Footnote 5 of Tam, notes that the Patent and Trademark Office has admitted on several occasions the vagueness inherent in making determinations regarding not only disparaging but also scandalous marks. This likely does not bode well for the government if it were to seek to maintain these kinds of prohibitions.
Some have raised questions as to the implications of Tam for the other, less politically controversial provisos in trademark law such as prohibitions on use of marks that cause dilution and especially tarnishment of existing marks. One version of the argument tying the Tam case to tarnishment is that if the government cannot discriminate against the viewpoint of someone seeking a trademark, it also cannot discriminate against someone who depicts a trademark in a negative light. Under that line of reasoning, the government has to allow both types of speech even if they are offensive. This argument, however, misses the mark on both Tam and the meaning of tarnishment. Trademarks possess a dual nature of both speech and property interest. Improper use of a mark, including a tarnishing use, changes the meaning of a mark and has the power to harm a property interest. Just because the government cannot refuse to register a car bearing a racist bumper sticker does not mean it cannot prohibit others from vandalizing that racist bumper sticker.
Viewed a different way, for trademarks to fulfill their function as distinctive indicators, owners have to be able to shape the content of their marks and preserve their goodwill. Tarnishment interferes with that ability and threatens the effectiveness of marks. Those who wish to express negative views about a trademark are not prevented from doing so; rather, they cannot use the mark itself (that they did not create) in their attempt. Would–be tarnishers instead have the opportunity to create their own marks to express a variety of opinions – including offensive ones post–Tam – as long as they do not engage in appropriation of others’ materials. In short, it is difficult to see a First Amendment problem in the dilution or tarnishment doctrines, especially when they are cabined by the robust fair-use defense which in turn permits the use of marks in non–commercial ways to comment on or criticize the mark-holder.
The post Symposium: The cacophony of trademarks is not government speech appeared first on SCOTUSblog.
Read more of this story at Slashdot.
Read more of this story at Slashdot.
Read more of this story at Slashdot.
Lisa P. Ramsey is a Professor of Law at the University of San Diego, and has written about the potential conflict of trademark laws and free speech rights in A Free Speech Right to Trademark Protection? and Increasing First Amendment Scrutiny of Trademark Law.
Owners of trademarks deemed by the government to be disparaging – such as THE SLANTS and REDSKINS – and free speech advocates are celebrating the U.S. Supreme Court’s holding in Matal v. Tam. The Supreme Court evaluated the constitutionality of the disparagement clause of the U.S. federal trademark law, 15 U.S.C. § 1052(a), and the eight justices unanimously agreed this law violates the free speech clause of the First Amendment because the government discriminates based on viewpoint and targets offensive expression with an intent to discourage its use. (Justice Neil Gorsuch did not participate in the consideration or decision of the case.) The court held that Section 1052(a) is a viewpoint-discriminatory law because it denies registration of marks that may disparage persons, institutions, beliefs or national symbols, while allowing registration of words or symbols that are positive or benign – “happy-talk,” per Justice Samuel Alito’s opinion. Laws that discriminate based on viewpoint are subject to constitutional scrutiny unless the regulation involves government speech, and trademark registrations by private parties are not government speech.
The decision in Tam is important because the Supreme Court directly addressed the question of whether a trademark law violates the First Amendment right to freedom of expression; avoidance of constitutional analysis is more common by courts in trademark disputes. It is also significant because the court acknowledged that trademarks can contain constitutionally protected commercial and noncommercial expression. After Tam, it is clear that trademarks are not included among the categories of expression that may be regulated by the government without subjecting the law to a constitutional balancing test, such as fraudulent speech or speech that incites others to imminent illegal activity. Moreover, unlike Eldred v. Ashcroft and Golan v. Holder, in which the court held that U.S. copyright laws are constitutional and not subject to First Amendment scrutiny as long as Congress does not alter the traditional contours of protection, the Tam decision suggests that trademark laws are content-based regulations that should be subject to constitutional scrutiny when they regulate noncommercial expression or non-misleading commercial expression. When faced with a First Amendment challenge to a trademark law, courts should determine whether the law is narrowly tailored to further a compelling or substantial government interest and consider the extent to which the law harms expression.
Although the court did not decide whether trademarks are commercial speech subject to “relaxed” constitutional analysis under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York and a majority of the justices did not agree on the appropriate framework for evaluating a First Amendment challenge to provisions of the federal trademark law, it is clear from Alito’s opinion (joined by Chief Justice John Roberts and Justices Clarence Thomas and Stephen Breyer) that trademark laws must at least survive Central Hudson’s intermediate-scrutiny analysis. Section 1052(a) failed that test. Justice Anthony Kennedy (joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan) argued that the viewpoint discrimination in Section 1052(a) is subject to “rigorous constitutional scrutiny” – which it did not survive – and noted that “commercial speech is no exception” to the “heightened scrutiny” required by Sorrell v. IMS Health Inc. when the government is regulating speech because of disagreement with the message it conveys. Citing his concurring opinions in Lorillard Tobacco Co. v. Reilly and 44 Liquormart, Inc. v. Rhode Island, Thomas also favored rigorous constitutional scrutiny of Section 1052(a) and said he “continue[s] to believe that when the government seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny is appropriate, whether or not the speech in question may be characterized as ‘commercial.’” Trademark infringement laws and other trademark statutes regulating misleading commercial expression will likely not violate the First Amendment right to free expression, but dilution laws and other expansive trademark doctrines that allow the government to prohibit or punish non-misleading uses of protected trademarks may not survive constitutional scrutiny after Tam.
Defendants in trademark disputes should therefore consider including a First Amendment defense in their answer and filing a motion to dismiss or summary judgment motion challenging the constitutionality of the trademark law or its application when they are using the plaintiff’s mark in noncommercial expression or commercial expression that is not misleading. Although the government can generally regulate misleading commercial expression, current trademark laws regulate expression that is not misleading. The federal dilution law, 15 U.S.C. § 1125(c), protects famous and distinctive trademarks against dilution by blurring or tarnishment “regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.” Some commentators believe that dilution laws may survive constitutional scrutiny under the Supreme Court’s approach in the 1987 case San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comittee (also known as the “Gay Olympic Games” case); the court applied intermediate-scrutiny analysis to a law prohibiting unauthorized use of the word “Olympic” and held the law was constitutional. Yet the court’s recent heightened scrutiny of commercial speech regulations and other content-based laws and its analysis in Tam suggest otherwise. Companies accused of trademark dilution may be able to argue that the dilution statute is an unconstitutional content-based regulation of non-misleading expression and is facially invalid under the First Amendment.
Unlike the dilution statute, the infringement statutes require proof that the accused infringer’s use of the mark is likely to cause confusion, but they do not explicitly require “commercial use” of the mark for trademark protection or infringement. Politicians have registered political slogans as trademarks, such as MAKE AMERICA GREAT AGAIN used in connection with expressive merchandise, blogs, political action committee services, and other goods and services, and have discouraged others from using the slogan in political expression. In addition, courts have enforced trademark rights against individuals and political, social and religious organizations that were using the marks of others to cause confusion about the source of noncommercial expression. Although there are good reasons to prohibit and punish misleading uses of trademarks in noncommercial expression, after Tam courts will not be able to reject First Amendment challenges in trademark disputes simply by saying that trademark laws only regulate commercial expression or that trademarks do not qualify as constitutionally protected expression.
The constitutionality of the government’s ban on registration of immoral or scandalous marks may also be doubtful after Tam, but the more interesting question is whether the court’s First Amendment analysis allows free speech advocates to argue that certain types of subject matter should not be registered or protected as a trademark to preserve the public domain and promote the free flow of commercial expression. Although Tam quotes the statutory provision in the federal trademark law that states that merely descriptive marks cannot be registered as trademarks, 15 U.S.C. § 1052(e)(1), descriptive words and symbols can be registered under 15 U.S.C. § 1052(f) if they acquire distinctiveness through use in connection with the advertising and sale of products. Companies can also register distinctive and nonfunctional product configurations, colors, scents, sounds, tastes, textures and other “nontraditional” subject matter used as trademarks if they communicate information about the source of products. Legislatures and courts should consider whether granting trademark rights in inherently valuable descriptive words, product attributes or hand gestures (such as the iconic rock hand gesture the Kiss band front man Gene Simmons recently sought to register as a mark for entertainment services) is constitutional under the First Amendment. Perhaps such content-based trademark laws can only survive constitutional analysis under Central Hudson or Sorrell if there is strong proof of acquired distinctiveness and the accused infringer’s use of the mark constitutes misleading commercial expression.
Finally, one significant problem with the Tam decision is that the court emphasizes the harm to expression caused by the disparagement clause of Section 1052(a) – and suggests it is akin to a prohibition of expression – without discussing the fact that a trademark right includes the ability to ask the government to assist the trademark owner in suppressing and punishing the expression of third parties who infringe or dilute the mark. Throughout the Tam opinion are statements of the court’s First Amendment doctrines disfavoring laws that ban, prohibit, suppress or censor expression, but Section 1052(a) allows the trademark owner to use the expression even if it cannot be registered. Contrary to suggestions otherwise by the news media, the Asian-American rock band “The Slants” still had the right to call itself by a disparaging name after its trademark registration was denied. Contrast Section 1052(a)’s denial of the benefits of a registration with trademark infringement and dilution statutes that actually prohibit and punish expression by allowing injunctions and awards of monetary damages to a prevailing trademark owner. The inability to obtain a trademark registration for an offensive mark may discourage use of that phrase or symbol as a mark, but registration of a trademark and expansive trademark protection will discourage use of the same language by many people for a variety of goods and services. Trademark law will only promote a marketplace of ideas if the legislature focuses on protecting consumers against misleading uses of trademarks, and courts follow the Tam court’s approach of increasing First Amendment scrutiny of trademark laws.
The post Symposium: Increasing First Amendment scrutiny of trademark law after Matal v. Tam appeared first on SCOTUSblog.
Christine Haight Farley is a professor at American University Washington College of Law who teaches intellectual property law.
In Matal v. Tam, formerly Lee v. Tam, the court settled certain aspects of First Amendment law while it opened up new issues in trademark law. It is a challenge for the uninitiated to follow a coherent path through the court’s First Amendment jurisprudence. I speak from personal experience as a trademark expert who has tried to make sense of First Amendment law. Free-speech absolutists will of course always find it easy to get to a particular end point. But I found certain questions, such as the approach to commercial speech and the treatment of viewpoint discrimination, to have some frustrating gaps. A First Amendment lawyer therefore will no doubt appreciate the court’s opinion in Tam, as it bears on both of these issues.
A trademark lawyer, in contrast, will come away with more questions raised than answered. The court definitively answered the question of whether the U.S. Patent and Trademark Office can refuse registration to disparaging marks. It cannot. (And yes, this is a decisive victory in the REDSKINS case too.) But what should the PTO do with applications for marks that are “scandalous” or “immoral,” as both categories are also barred registration by the Lanham Act? Although the court was silent as to these bars, there may not be any way to distinguish them from the provision at issue in Tam. This lingering question was to be expected because the court does not pronounce on issues that are not before it. The court’s opinion, however, raises a far more fundamental question: What is the relationship between the First Amendment and trademark law?
In striking down the challenged law as unconstitutional, a unanimous court (Justice Neil Gorsuch did not participate) was definitive on two points, which clarify First Amendment law beyond its application to trademark law: The disparaging marks provision of the Lanham Act constitutes viewpoint discrimination, and the program of federal trademark registration is not government speech. The second point was perhaps the most central issue in the case for the court. Having recently decided another government speech case, certain justices were presumably eager to revisit that doctrine. In 2015, in Walker v. Texas Division, Sons of Confederate Veterans, Inc., the court split 5-4, ultimately finding constitutional a law that denied the Sons of Confederate Veterans specialty license plates. Justice Samuel Alito wrote the dissent in Walker (joined by Chief Justice John Roberts, Justice Antonin Scalia and Justice Anthony Kennedy) and the majority opinion in Tam. Tam was therefore an opportunity for the dissenters to limit this doctrine, noting it is “susceptible to dangerous misuse,” and declare that Walker “marks the outer bounds of the government-speech doctrine.” The court in Tam fervently rejected the proposition that when the government puts its seal of approval on certain private speech, that speech is transformed into government speech.
Tam therefore may be of interest to a First Amendment lawyer as a curtailment of the government-speech doctrine. The court rejected the application of that doctrine because the government neither creates nor independently cancels these marks, the messages that registered marks convey are varied and even inconsistent, and the public does not understand the registration process. It may be difficult to fit trademark registration into the category of government speech, but it is not clear why any of the characteristics listed above should be essential. One quibble with the court’s analysis of trademark registration as government speech: The court stated that the PTO “does not edit marks submitted for registration.” I would argue that when the PTO requires an applicant to officially disclaim words in a mark that the applicant is already using in commerce, it is editing the mark that becomes registered. (A broader critique is that the court seems often to be speaking of trademarks when the issue before it is limited to the registration of trademarks.)
The court gave comparatively short shrift to the other arguments advanced by the government as to why the disparaging marks provision is constitutional — that the provision was a feature of a government subsidy or a government program in which participants’ constitutional rights outside the program were not leveraged by the program restrictions. Too bad as I thought these were better arguments in favor of the provision than the government-speech doctrine.
As to viewpoint discrimination, Tam instructs that it is a subcategory of content discrimination and that when it is present, the limited public forum doctrine is unavailable. More importantly, we learn in Tam about the breadth of the category of viewpoint-based speech. A regulation may be deemed viewpoint based even when neither the government nor the speaker has a viewpoint. The disparagement provision was unsuccessfully argued to be viewpoint neutral because the government did not pick sides and was not swayed by the applicant’s intentions. The court found, however, that it is enough if the law considers the viewpoint of the audience. Moreover, the court bluntly stated that “[g]iving offense is a viewpoint.” These broad pronouncements about viewpoint discrimination will surely keep First Amendment lawyers and scholars busy.
Tam does not, however, elucidate on the standard applied to commercial speech. The question of when, if ever, strict scrutiny is appropriate when the regulation at issue is directed to commercial speech was provoked by the court’s 2011 decision in Sorrell v. IMS Health Inc. Another question, which arose for the first time in this case, is whether trademarks are properly categorized as commercial speech. Neither of these questions was answered by the court in Tam. The majority opinion acknowledged the latter question, although not the former, and stated that the court did not need to resolve the issue because the disparaging marks provision fails even the more lenient test for commercial speech established in Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York. Both Kennedy’s concurrence (joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan) and Justice Clarence Thomas’ concurrence answered the former question directly and unequivocally. These five justices all agreed that when viewpoint discrimination is present, strict scrutiny should apply even in the context of commercial speech. Thus, on this point, the majority was actually in the minority as only Roberts, Breyer, and Alito seemed to resist this step.
Alito’s opinion found that the disparaging marks provision failed the Central Hudson test, I believe, chiefly because the government was not able to identify a substantial government interest that the provision advances. For example, during oral argument, the PTO’s deputy solicitor general surprised legal commentators with his response to Breyer’s question about the purpose of the disparagement provision. He responded that the provision was consistent with broader trademark policy because disparaging marks were a distraction to the public. There was much tittering about this argument within my echo chamber. The lack of a clear rationale for this provision in the legislative history is something I have addressed in my scholarship.
Although this is not the decision I was hoping for in this case — I filed an amicus brief co-authored with Rebecca Tushnet on behalf of 31 law professors in support of the government — it is the decision I was expecting. What I could not anticipate — and what I was most eager to discover — is what the court would say about the relationship between the First Amendment and trademark law. I was wondering whether Tam would be to trademark law what Eldred v. Ashcroft was to copyright law in terms of rationalizing how intellectual-property law does not run afoul of the First Amendment. It was not.
The Tam opinion goes a certain distance in suggesting the applicability of First Amendment protections within trademark law, but it does not explain the relationship between the two or how the burdens that trademark law place on speech can survive. In this regard it is significant that the court chose not to categorize trademarks as commercial speech. Previously, courts have justified injunctions on the non-misleading use of trademarks as a permissible restriction on commercial speech. As the court expands the protection of commercial speech, or the speech that formerly belonged in that category, it will become more difficult for courts to enjoin non-misleading speech.
Although it may have been unnecessary to reach the question of whether trademarks are commercial speech, the court’s silence may be telling. Rather than answering that question directly, the court hinted at the proposition advanced by Tam and some amici that trademarks are expressive speech. For example, the court twice noted that the band adopted the mark in an effort to reclaim the derogatory term and also observed that “trademarks often consist of catchy phrases that convey a message.”
Justice Kennedy’s concurrence explicitly noted that the “case does not present the question of how other provisions of the Lanham Act should be analyzed under the First Amendment.” Immediately following this statement, however, he observed, almost as if to answer the question anyway, that what is settled is that the law can prohibit the use of confusing and misleading trademarks. This raises the question of whether trademark law runs afoul of the First Amendment when it prohibits the non-misleading use of trademarks or denies registration for other reasons.
Either if trademarks are not commercial speech, or if content-based regulations of commercial speech are subject to strict scrutiny, then certain provisions of trademark law become vulnerable. Section 2 of the Lanham Act contains other registration bars that are not directed at the misleading use of trademarks. For instance, Section 2 also prohibits the registration of inaccurate but not necessarily misleading geographical indications of origin for wine or spirits, names of specific living persons absent written consent, and government insignia. Would these prohibitions survive strict scrutiny? Likewise, the dilution provisions in Section 43(c), which enable non-confusing speech to be enjoined, could be challenged based on the broad understanding of speech protection in trademark law advanced by the Tam court. These questions will have to be answered in another case, as I am sure they will be, because the Tam opinion invites trademark litigants to raise constitutional claims and courts to experiment with free-speech doctrines in trademark law.
The United States Senate is currently committing an outrageous violation of our norms for policymaking in a democracy: that laws should be drafted in a way that allows for public scrutiny and bipartisan consideration.
The legislative process Majority Leader Mitch McConnell has created is fundamentally different from the ways in which previous fundamental legislation has been considered. He is using every procedural artifice available to prevent any public knowledge of the bill. Instead of holding hearings and markups, the Senate is legislating through secrecy and crisis, treating requests for public information by journalists and even Senators as the enemy of progress.
This story is proving hard for many journalists to cover. National outlets are releasing analysis of the process that suggests the Senate’s secrecy is business as usual. In service of false balance, the struggle over access to the healthcare bill is portrayed as partisan wrangling, framing what’s occurring in Washington today as a natural extension of how the Senate has long operated.
This is simply not the case.
Evaluating legislative procedure generally involves subtlety and hypocrisy. Issues like the filibuster or the debt limit show how positions on legislative process are often dictated by party rather than principle, with the minority favoring transparency and obstruction, and the majority defending secrecy.
That is not what is happening here.
McConnell’s Senate procedure is designed, from start to finish, to minimize transparency. Republican leadership is hiding the healthcare bill, and thus preventing health care policy journalists and analysts from informing constituents, voters, and reporters about the impact of the proposals.
This is not a mundane bill about a post office or a minor shift in rules or regulations. This legislation would make changes to the United States government’s health care system, which represents a sixth of the economy.
Voters are extremely motivated. Whether they love or hate the Affordable Care Act, AKA “Obamacare,” shifts to health care laws that change access, subsidies or covered conditions are present, important, and personal. People’s lives literally depend on our elected leaders getting these answers right, and on understanding what to correct when we misstep.
The Republican Senate Leadership is supplanting the institutions and traditions of the Senate, developed to help create a rational, participatory basis for public laws, with a vague mandate from a President who has privately undercut the House’s bill as “mean.”
A bill as important as this should get the full benefit of informed reporting, input from industry and jurisdictions it will affect, and from the constituents whose lives it will affect.
More fundamentally, Senate Leadership should be aspiring to protect a vital democratic institution: a Congress that represents voters’ will, through a fair, open fight over complex disagreements.
Secrecy around the Senate health care bill is the opposite of how the legislative process in a democracy should work, much less the chamber populated with Senators who like to tout it as the greatest legislative body in the world.
The larger that a gap between public knowledge and private legislative action is, the more impact upon trust in an institution will result.
Every bill should be disclosed to the public online in a machine-readable format, marked up in open committee, and debated, much less a proposed reform that would affect the health care of tens of millions of Americans.
The road to rebuilding public trust in Congress is paved with transparency and accountability to constituents, not secrecy. Every U.S. Senator should insist upon regular order, not sacrifice openness on the altar of naked legislative power.
What is happening in the Senate is not complicated, even though it’s a change that is decades in the making. It’s not a question of Senatorial discretion, private conversations, or empowering compromise. Sometimes, the value of transparency in Congress is tricky, subtle, and debatable.
Now is not one of those times.
McConnell is hiding the healthcare bill, at the country’s peril.
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 government’s 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 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 Alito’s 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 Kennedy’s 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 Act’s provisions that bar registration for truthful content would seem viewpoint discriminatory.
Consider also the Lanham Act’s 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 court’s reasoning, the Lanham Act’s 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 don’t 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 Act’s other discriminatory criteria for trademark registration. Similarly, the disparagement clause appears justifiable as a commercial-speech regulation because it supports the government’s 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.
Read more of this story at Slashdot.
The Washington Post confirmed our concerns that transparency and open government have had a bad six months in Washington, DC. "More and more in the Trump era, business in Washington is happening behind closed doors. The federal government’s leaders are hiding from public scrutiny — and their penchant for secrecy represents a stark departure from the campaign promises of Trump and his fellow Republicans to usher in newfound transparency."
But the news isn't all bad. Read on for more open government news from around the country and across the globe.states and cities
The Stanford Open Policing Project
- Open data on more than 130 million traffic stops shows significant racial disparities. "When we apply the threshold test to our traffic stop data, we find that police require less suspicion to search black and Hispanic drivers than whites. This double standard is evidence of discrimination." (Stanford Open Policing Project) This project is an extraordinary act of public service and accountability.
- We're proud to announce that there are now 100 open data policies from American cities in our database at opendatapolicies.org
- Tyler, Texas joins open data ranks. You can read and provide feedback on their new open data policy using Madison.
- Using data to fight the opioid epidemic in Ohio. "Before we can respond effectively, however, we need to know just what we're dealing with. We need data, presented in an analytical way that helps us target our limited resources. So we built an application for it. Deployed to the web with a mobile-friendly interface, the "Heroin Overdoses in Cincinnati" page is an integral part of our city's interactive dashboard." (Governing)
- Fighting floods in San Francisco with civic technology. "Enter Adopt a Drain, an app that enables residents to find their closest storm drain, claim it, and agree to clear any debris in advance of storms, tapping into San Francisco’s greatest resource – civic-minded residents. To support these volunteers, SFPUC provides them with tools, supplies, and training. The app was developed in a partnership between SFPUC, the city data office, DataSF, and Code for San Francisco, an organization that brings together volunteers interested in finding technological solutions to the city’s problems." (Data-Smart City Solutions)
- The White House hosted tech leaders to discuss modernization of government tech. The agenda called for "10 working groups to propose changes to major aspects of government IT and technology. Participants will 'collaboratively develop ideas for how government can operate like a modern technology enterprise' on issues ranging from cybersecurity and procurement to cloud strategy and better user-interfaces for public services." (Government Executive)
- Flynn failed to list foreign contacts on clearance form. "Michael Flynn didn’t list any interactions with foreign government officials on his application last year to renew his security clearance, despite indicating in a speech days after submitting the application that he had had extensive contacts in Saudi Arabia and other countries, according to a letter Monday from two senior House Democrats." (POLITICO)
- Chaffetz knocks Trump on secrecy as he leaves House Oversight Committee. "During an exclusive TV interview arranged after his surprise mid-May announcement that he will resign on June 30, Chaffetz told Sharyl Attkisson of the Sinclair Broadcast Group’s “Full Measure” that agencies under Trump are even less forthcoming in the transparency department." (Government Executive)
- Chaffetz knocks endless fundraising responsibilities as he leaves Congress. In the same interview mentioned above, Chaffetz " lambasted the fundraising virus that plagues our elected representatives." (Issue One)
- New book explores how centralization of policy process and staff cuts in Congress fuels revolving door and lobbyist influence. "The shift on Capitol Hill to centralize much of the major policymaking in leadership offices, as opposed to committees, along with a reduction in legislative staff and their salaries has helped propel the revolving door in recent years, says Timothy LaPira, a James Madison University professor." (Roll Call)
- Sunlight joins group calling for discussion of digital best practices at the Congressional Budget Office. The bipartisan coalition outlined several topics for discussion including predictable URLs, bulk data, improved search functionality, and more. Read the full letter here.
- Supreme Court will hear landmark case on partisan gerrymandering. "The U.S. Supreme Court will consider whether judges can throw out legislative maps for being so partisan they violate the Constitution, taking up a case that could put a powerful new check on gerrymandering." The Supreme Court has never struck down a map for being too partisan. (Bloomberg)
Canadian Prime Minister Justin Trudeau. Image Credit: World Bank Group
- In Canada, Trudeau's transparency reforms don't live up to promises. "New legislation to update Canada’s access to information system fails to follow through on the promises made by the Trudeau government over the last two years. It will do little to expand the reach of the act, improve timelines, or limit wildly-used exemptions that frustrate the disclosure of information." (Vice News)
- Mexican Government using spyware to track journalists, critics. " Mexico’s most prominent human rights lawyers, journalists and anti-corruption activists have been targeted by advanced spyware sold to the Mexican government on the condition that it be used only to investigate criminals and terrorists." (New York Times) Our take? The Mexican government using spyware on journalists & human rights advocates undermines trust and open government.
- Estonia, Luxembourg agree on deal to create worlds first "data embassy". "The idea behind the data embassy is to guarantee the digital continuity of Estonia in the event of any physical disruptions. The state will back up critical data and services outside its territory." (OpenGov Asia)
- June 27th: Legislative Data and Transparency Conference in Washington, DC. "The Legislative Data and Transparency Conference 2017 (#LDTC17), hosted by the Committee on House Administration, will take place on Tuesday, June 27, 2017in the Capitol Visitor Center Congressional Auditorium. The #LDTC17 brings individuals from Legislative Branch agencies together with data users and transparency advocates to foster a conversation about the use of legislative data – addressing how agencies use technology well and how they can use it better in the future." Learn more here.
- June 28th, 10am EST: How Can Demand Driven & Bottom Up Social Accountability Tools Improve Health Services? The Experience of Rural Mozambique, Webinar. "This webinar explores how Concern Universal has managed to find the intersections in incentives and goals between government and rural communities while helping overcome some crucial gaps in health service delivery. It focuses on lessons learned through application of collaborative government/citizen’s approach. More information here: http://bit.ly/2sUtR0C"
- June 29th: DATA Act Summit 2017 in Washington, DC. "The fourth annual DATA Act Summit, hosted by the Data Coalition and Booz Allen Hamilton, will bring together supporters of the open data transformation from across government and the private sector." Learn more and get your tickets here.
- July 5, 10am EST: ICT-mediated Citizen Engagement: Voice or Chatter? Webinar. "In this webinar, IT for Change will present the results of eight empirical case studies of citizen engagement through ICTs they undertook. This research, funded by Making All Voices Count, explored in each case how new forms of participation were shaped by IT, how IT affected power relations between government and citizens, and how the interactions between different actors continuously shape governance. More information here: http://bit.ly/2rb4TJ3"
- July 19, 5:30 PM EST. Book Discussion: When Your Job Wants You To Lie in Washington, DC. "Join us for a discussion that will help us deal with the kinds of situations we all encounter. Presented by the American Society for Public Administration, National Capital Area Chapter (ASPA NCAC). Refreshments start 5:30, and the discussion starts 6:00. Space is limited, so you must RSVP in advance." Learn more and RSVP here.
- September 11th and 12th: TicTec@Taipei in Taipei. "TICTeC@Taipei is the first ever conference about the influence of civic tech to be held in Asia. We’ve invited members of academia, business, politics, NGOs, education to participate, and discuss their research. We hope through this event, we can build a global network of civic tech enthusiasts." The event is being held during #CivicTechFest 2017. Learn more, submit a session proposal, and register to attend here.
Tired of your boss/friend/intern/uncle forwarding you this email every morning? You can sign up here and have it delivered direct to your inbox! Please send questions, comments, tips, and concerns to firstname.lastname@example.org. We would love your feedback!
Yesterday the Supreme Court agreed to hear a high-profile partisan-gerrymandering case from Wisconsin, Gill v. Whitford. The justices also granted Wisconsin’s request for a stay of a lower-court ruling requiring the state to implement a new districting map by next fall. They summarily reversed an appeals court grant of habeas corpus relief to a criminal defendant in Jenkins v. Hutton, and they asked for the views of the solicitor general in a bankruptcy case. Amy Howe covers the orders list for this blog. At The Washington Post’s Volokh Conspiracy blog, Jonathan Adler notes that Jenkins continues a recent “trend” in which “the Supreme Court has repeatedly reversed the 6th Circuit in habeas cases, often without oral argument.”
In The Washington Post, Robert Barnes reports on Gill, noting that the “Supreme Court has never found a plan unconstitutional because of partisan gerrymandering,” and that “[i]f it does, it would have a revolutionary impact on the reapportionment that comes after the 2020 election.” In USA Today, Richard Wolf reports that “[w]hat’s different this time from past Supreme Court clashes is the existence of data-driven models to measure election results against other factors.” At Bloomberg, Greg Stohr notes that in voting “5-4 along ideological lines in a separate order” to grant Wisconsin’s request for a stay, “the justices sent a signal they may be skeptical of the challengers’ arguments.” Additional coverage comes from Lyle Denniston at his eponymous blog, Adam Liptak in The New York Times, Josh Gerstein at Politico, Lydia Wheeler at The Hill, Andrew Chung at Reuters, Ariane de Vogue and Daniella Diaz at CNN, BBC News, Gary Gately at Talk Media News, Sam Levine at The Huffington Post, Cameron Joseph in The New York Daily News, and Patrick Marley in the Milwaukee Journal Sentinel.
At the Election Law Blog, Rick Hasen observes that the “stay order raises a big question mark for those who think Court will use the case to rein in partisan gerrymandering.” In The Atlantic, Hasen notes that Gill brings “the partisan gerrymandering beauty pageant” back “to the Supreme Court … for a limited engagement for an audience of one: Justice Anthony Kennedy.” At Think Progress, Ian Millhiser points out that the court postponed consideration of its jurisdiction over the case until it hears the case on the merits, “suggesting that many of the Court’s members think that federal courts do not have the power to hear gerrymandering cases.” More commentary and analysis come from Stephen Wolf in the Daily Kos, Vann Newkirk II in The Atlantic and Dylan Matthews at Vox.
In The Hollywood Reporter, Eriq Gardner reports that the court “has finally decided that it won’t review Lenz v. Universal Music Corp., a case examining the circumstances by which copyright holders can get into trouble when issuing takedown notices.” At Reuters, Lawrence Hurley reports on another cert denial, noting that the justices “handed a victory to Chevron Corp by preventing Ecuadorean villagers and their American lawyer from trying to collect on an $8.65 billion pollution judgment issued against the oil company by a court in Ecuador.” Additional coverage of the Ecuador decision comes from Devin Henry at The Hill.
The justices also issued five decisions yesterday. Mark Walsh has a “view” from the courtroom for this blog. In Matal v. Tam (formerly called Lee v. Tam), the court held that the disparagement clause of the Lanham Act, which governs the registration of trademarks, violates the First Amendment. Amy Howe has this blog’s opinion analysis; the blog is also hosting a symposium on the decision. At Politico, Josh Gerstein reports that “[t]he result in the closely-watched case could doom legal challenges to other trademarks many consider offensive, such as that for the Washington Redskins football team,” but notes that “no majority of the court agreed on precisely what legal standard to apply in the case.” Additional coverage comes from Fox News, Adam Liptak in The New York Times, Tony Mauro in The National Law Journal (subscription or registration required), Andrew Chung at Reuters, Richard Wolf at USA Today, Greg Stohr at Bloomberg, Ariane de Vogue at CNN, Gary Gately at Talk Media News, and Lyle Denniston at his eponymous blog. Commentary comes from Matt Ford in The Atlantic; Ilya Shapiro at the Cato Institute’s Cato at Liberty blog; Eugene Volokh at the Washington Post’s Volokh Conspiracy, here and here; Ruthann Robson at the Constitutional Law Prof Blog; Erica Goldberg at In a Crowded Theater; and the editorial board of The Washington Post.
In Packingham v. North Carolina, another First Amendment ruling, the court struck down a North Carolina law that barred sex offenders from accessing social-media sites that allowed minors to create accounts. Amy Howe analyzes the opinion for this blog. At his eponymous blog, Lyle Denniston reports that the “three Justices who did not support the main opinion agreed that the state law at issue ‘has a staggering reach’ and .. was invalid,” but “they voiced worry that the lead opinion, written by Justice Anthony M. Kennedy, had been ‘undisciplined’ in its discussion of how far the First Amendment goes to protect expression via the Internet.” Additional coverage comes from Mark Walsh at Education Week’s School Law Blog, Lawrence Hurley at Reuters, Richard Wolf at USA Today, Greg Stohr at Bloomberg, and Gary Gately at Talk Media News. Commentary comes from Ed Mannino at his eponymous blog, Stuart Benjamin at The Washington Post’s Volokh Conspiracy blog, Ruthann Robson at the Constitutional Law Prof Blog, and Ilya Shapiro in an op-ed in the Washington Examiner. Howard Wasserman and Rick Garnett look at both of today’s First Amendment decisions at PrawfsBlawg, here and here, respectively.
Yesterday’s third opinion was in Ziglar v. Abbasi, in which the justices limited the ability to bring suit under the Constitution against federal officials for detentions in the wake of the September 11 terrorist attacks. This blog’s opinion analysis comes from Amy Howe. At Politico, Josh Gerstein reports that the majority held that “a suit for money damages in such circumstances could not proceed without authorization from Congress.” Additional coverage comes from Lyle Denniston at his eponymous blog, Adam Liptak at The New York Times, Richard Wolf at USA Today, Gary Gately at Talk Media News, and Lawrence Hurley at Reuters, who reports that Justice Stephen Breyer “took the relatively unusual step of reading his dissent from the bench.”
At Dorf on Law, Michael Dorf observes that yesterday’s ruling in Abbasi makes it all but impossible for civil rights plaintiffs to sue federal officials for money damages.” In The Atlantic, Garrett Epps argues that the “verdict could have significant implications for the case testing the Trump administration’s ‘travel ban’ barring entry of persons from six majority-Muslim countries, which just arrived in the court’s in-basket.” At Just Security, Steve Vladeck maintains that “Abbasi is perhaps the most important case the Court has decided so far this Term, and one of the most important it has handed down with regard to remedies for unconstitutional federal government conduct in decades,” “[a]nd [that] it’s terribly unconvincing, in the process.” At PrawfsBlawg, Howard Wasserman weighs in on the decision here, and Will Baude looks at Justice Clarence Thomas’ separate opinion, in which Thomas expressed “skepticism … about the doctrine of qualified immunity,” here.
In McWilliams v. Dunn, the court found that Alabama had denied a death-penalty defendant the expert mental-health assistance to which he was entitled under the standard the court established in Ake v. Oklahoma. Amy Howe has this blog’s opinion analysis. In The Wall Street Journal, Jess Bravin reports that the “5-4 decision, dividing largely along ideological lines, stopped short of declaring that defendants have a constitutional right to place such experts on their legal teams, the issue the court initially agreed to decide, leaving dissenters fuming that the majority flouted court rules to reach its consensus.” Additional coverage comes from Lawrence Hurley at Reuters, Richard Wolf at USA Today, Gary Gately at Talk Media News, and Adam Liptak at The New York Times. Commentary comes from David Alan Sklansky at Stanford Law School’s Legal Aggregate blog.
And in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, the justices reversed a state court finding of specific personal jurisdiction over out-of-state plaintiffs in a multistate lawsuit. Ronald Mann analyzes the opinion for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.] At Bloomberg, Greg Stohr reports that the decision “gave companies a new tool to defeat some legal claims.” Additional coverage comes from Andrew Chung at Reuters and Tony Mauro in The National Law Journal (subscription or registration required). At Mayer Brown’s Class Defense Blog, Andrew Pincus and others maintain that “the decision raises substantial questions about whether nationwide class actions can proceed in jurisdictions where a defendant is not subject to general jurisdiction.” PrawfsBlawg has commentary on the decision from Howard Wasserman here, Stephen Sachs here, and Cassandra Robertson here. Additional commentary comes from Walter Olson at the Cato Institute’s Cato at Liberty blog.
- At Just Security, Marty Lederman weighs in on the entry-ban cases, offering “three quick reactions to the government’s latest filing in the Ninth Circuit case—the first two on questions concerning what the Court should do now with the government’s applications, and the third with respect to the merits of the statutory ultra vires argument on which the Court of Appeals for the Ninth Circuit relied.”
- At Empirical SCOTUS, Adam Feldman analyzes data from this term related to the frequency, duration and timing of the justices’ questions and comments at oral argument.
- At Capital Appellate Advocacy’s Insights blog, Lawrence Ebner calls Justice Neil Gorsuch’s first opinion for the court last week “a model of both outstanding judicial opinion writing and judicial restraint,” which, “if [it] is predictive of what is to come, … already vindicates President Trump’s selection.”
Remember, we rely exclusively on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.
In 2011, Simon Tam asked the U.S. Patent and Trademark Office to register the name of his band: The Slants. Tam and the band acknowledged that the term “slants” is often regarded as derogatory to people with Asian ancestors, but they had hoped to use it as their name to “reclaim” the term and erase its negative connotations. However, the PTO rejected Tam’s request, relying on a provision of federal trademark law barring the PTO from registering trademarks that may disparage other people, whether they are alive or dead. A federal appeals court agreed with Tam that this provision, known as the “disparagement clause,” violates the First Amendment. In a significant free-speech decision, the Supreme Court today upheld that ruling, holding that the disparagement clause “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
But the eight-justice court could not agree on the reasoning that it used to reach that conclusion. Four justices – Justice Samuel Alito, joined by Chief Justice John Roberts and Justices Clarence Thomas and Stephen Breyer – invalidated the disparagement clause on First Amendment grounds. Four others – Justice Anthony Kennedy, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – believed that the provision was subject to an even more stringent test, which it could not pass. In the end, however, the disagreement over the correct approach made little difference.
The government had advanced several reasons why the disparagement clause does not violate the First Amendment’s guarantee of freedom of speech. First, it contended that trademarks are government speech, which is not subject to the First Amendment. All eight justices agreed that this argument misses the mark. In an opinion by Alito, the court explained that the federal government “does not dream up these marks, and it does not edit marks submitted for registration.” Therefore, “it is far-fetched to suggest that the content of a registered mark is government speech.” If it were, Alito continued, the federal government “is babbling prodigiously and incoherently.”
In a part of the opinion joined by Roberts, Thomas and Breyer, Alito next rejected the government’s efforts to compare trademarks to “government programs that subsidized speech expressing a particular viewpoint.” The cases to which the government points, Alito stressed, all involved the government’s payment of “cash subsidies or their equivalent”; by contrast, when someone like Simon Tam applies to register a trademark, he has to pay the government a filing fee and then pay another fee to maintain his registration if he succeeds.
Finally, Alito turned to, and rebuffed, the government’s argument that trademarks are commercial speech, which receives less protection under the First Amendment than other speech. Even if it is commercial speech, Alito reasoned, the disparagement clause still can’t pass the less stringent test used to evaluate restrictions on such speech. To survive constitutional muster, limitations on commercial speech must be drawn narrowly to advance a “substantial interest.”
The government attempted to justify the disparagement clause as necessary to protect “the orderly flow of commerce” and to prevent “underrepresented groups” from being inundated with “demeaning messages in commercial advertising.” But the latter rationale, Alito complained, boils down to “an interest in preventing speech expressing ideas that offend” – which “strikes at the heart of the First Amendment.” Such speech may be “hateful,” Alito agreed, “but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate.”
And in any event, Alito continued, the disparagement clause sweeps too broadly because it applies to all disparaging trademarks, including those that disparage racists or sexists. “It is not an anti-discrimination clause,” Alito lamented dryly, but instead “a happy-talk clause.”
Kennedy wrote an opinion that was joined by Ginsburg, Sotomayor and Kagan. Those justices would subject the disparagement clause to a more searching review, on the ground that it amounts to “viewpoint discrimination” – singling out some messages for less favorable treatment based on the views that they express. They reasoned that the clause allows an applicant to register a “positive or benign” trademark, but “not a derogatory one.” Because it “reflects the Government’s disapproval of a subset of messages it finds offensive,” it “is the essence of viewpoint discrimination.” And the Supreme Court’s cases make clear, Kennedy emphasized, that such discrimination is not allowed when, as the trademark program does in this case, the federal government spends money “to encourage a diversity of views from private speakers.”
Kennedy concluded with a reminder that laws 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 government’s benevolence.” “Instead,” he noted, “our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”
Although Simon Tam will benefit most directly from today’s ruling, another group was cheering it as well: the Washington Redskins, whose trademarks were cancelled in 2014 on the ground that they were disparaging to Native Americans. A lower court upheld the cancellations, but today’s ruling will breathe new life into the team’s challenge to that decision.
The post Opinion analysis: Justices hold ban on “disparaging” trademarks violates Constitution appeared first on SCOTUSblog.
The petition of the day is:Patriotic Veterans, Inc. v. Hill 16-1198
Issues: (1) Whether Indiana’s Automatic Dialing Machine Statute creates a content-based restriction that cannot survive strict scrutiny under Reed v. Town of Gilbert, Arizona; and (2) whether the ADMS is a valid time, place and manner restriction.
David Laskin – “Why go to the library in Italy when all around you there is fantastic art, exalted architecture, deep history, and intensely passionate people? Because, as I discovered in the course of a rushed but illuminating week dashing from Venice to Rome, Florence, and Milan, the country’s historic libraries contain all of those without the crowds. I hit six libraries in a literary Giro d’Italia. Not once were we shushed or told not to touch…In the madness of late spring at San Marco Square in Venice, amid the hordes pouring in from land and sea, hard by the hissing espresso machines and sizzling panini presses of overpriced cafes, I found the still point of the turning world. I found it in the library. It was 10 in the morning and I was standing, alone and enthralled, on the second floor balcony of the Biblioteca Nazionale Marciana. Across the Piazzetta rose the Doge’s Palace…”
Here is an overview of today’s case coverage:
2:56 p.m.: Ronald Mann analyzed the court’s opinion in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County.
3:47 p.m.: Mark Walsh provided a “view” from the courtroom for today’s opinion announcements.