Patterico's Pontifications

10/1/2016

Reminder of Why the Court Matters: First Amendment Case Going to the Supreme Court May Affect Redskins Trademark

Filed under: General — Patterico @ 2:30 pm



Lost in the welter of stories about sex tapes and the presidential election this week was the news that a very important First Amendment case is on its way to the Supreme Court. The case, a trademark dispute involving a band called The Slants, could determine the future of the Washington Redskins’ trademark. The case is a reminder that the Supreme Court still has a vacant seat and that our most precious Constitutional freedoms hang in the balance.

If you’re looking for the full background, I wrote up the case last December in this post, but here is the nutshell version: a bunch of Social Justice Warriors in the U.S. Government want to claim the ability to deny you a trademark law if they find your trademark “disparaging.” And thanks to a landmark victory in the Federal Circuit won by Ron Coleman — partner at Archer & Greiner and the author of the Likelihood of Confusion blog — the government’s SJWs no longer have that power.

The quick and dirty background is this: The Slants is a rock group consisting of Asians. They took on the name “The Slants” to “own” the term, which is commonly thought to be derogatory towards Asians. And then the government told them that they could not do that and still claim federal trademark protection. Like the “Redskins” trademark, the government invoked a provision of trademark law that prevents registration of “disparaging” marks. I turn the mic over to Eugene Volokh at the Washington Post:

Based on that provision, the Patent and Trademark Office barred the registration of THE SLANTS (I use all-caps for this in this post, to follow trademark opinion style), a trademark used by Simon Tam’s Asian American musical group of that name. The PTO has famously canceled the registration of REDSKINS. And it has done the same for many other marks: STOP THE ISLAMISATION OF AMERICA, THE CHRISTIAN PROSTITUTE, AMISHHOMO, MORMON WHISKEY, KHORAN for wine, HAVE YOU HEARD THAT SATAN IS A REPUBLICAN?, RIDE HARD RETARD, ABORT THE REPUBLICANS, HEEB, SEX ROD (apparently some sort of reference to the Red Sox), MARRIAGE IS FOR FAGS, DEMOCRATS SHOULDN’T BREED, REPUBLICANS SHOULDN’T BREED, 2 DYKE MINIMUM, WET BAC/WET B.A.C., URBAN INJUN, SQUAW VALLEY (in part), N.I.G.G.A. NATURALLY INTELLIGENT GOD GIFTED AFRICANS, “a mark depicting a defecating dog … (found to disparage Greyhound’s trademarked running dog logo),” “an image consisting of the national symbol of the Soviet Union with an ‘X’ over it,” and more.

Thanks to Ron Coleman’s pro bono work for The Slants, the “disparagement” provision has been found unconstitutional by the Federal Circuit Court of Appeals. I quote from the court’s decision:

The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional. Because the government has offered no legitimate interests justifying § 2(a), we conclude that it would also be unconstitutional under the intermediate scrutiny traditionally applied to regulation of the commercial aspects of speech.

This is where I stand up and start singing the national anthem.

That the government cannot deny one applicant a trademark because it is disparaging to a group, while awarding another applicant a trademark that praises the same group, should be an obvious conclusion. Preventing viewpoint discrimination by the government is at the heart of the First Amendment.

Nevertheless, the issue is now on its way to the Supreme Court, where four hard-left Justices are tenuously balanced by four judicial conservatives who display varying degrees of fidelity to the Constitution.

And one seat remains open. The election will determine who fills that seat, and may determine the future of the First Amendment in this and other cases.

FULL DISCLOSURE: I should add that Ron and the excellent Bruce Godfrey of Jezic & Moyse LLC have represented me pro bono in the past and have always done an excellent job. I am forever grateful to them — and I look forward to Ron arguing in the Supreme Court!

[Cross-posted at RedState.]

40 Responses to “Reminder of Why the Court Matters: First Amendment Case Going to the Supreme Court May Affect Redskins Trademark”

  1. Hillary! Clinton in 2016!

    Colonel Haiku (2601c0)

  2. So, if you successfully undermine Trump and Hilary is elected say bye bye first amendment. That will be the least of the damage she does.

    jim (a9b7c7)

  3. I’m not confident about how this court, sans scalia, will rule the right way,

    narciso (d1f714)

  4. i really a lot hate it when people do the disparagement on Mr. Trump

    he’s the only way we can stop her from doing pig all up in it

    he’s our obi wan

    happyfeet (28a91b)

  5. therein lies the rub, freedom of speech is subordinated to ‘redistribution of income’ and ‘fundamental transformation’ like the notion of ‘implicit bias’

    narciso (d1f714)

  6. Well duh, Junior. Maybe you should go vote for Trump!

    No.

    Patterico (bcf524)

  7. Does that mean if Klepto Klinton is elected “the media” will officially change it’s name to The Ministry of Propaganda and remove the charade?

    Rev. Hoagie® (785e38)

  8. ‘Make America Grate Again’ is so cheesy.

    JR should sue.

    “People want to be told what to do so badly that they’ll listen to anyone.” – Don Draper [Jon Hamm] ‘Mad Men,’ AMC

    DCSCA (797bc0)

  9. 12: Well, Pence is kinda like John Slattery.

    urbanleftbehind (fa1393)

  10. narciso, Ginsberg presumably viewed ‘redistribution of income’ and ‘fundamental transformation’ as good social policy, for such things have routinely passed her test as “constitutional”. Pelosi skipped the good part of the policy test, but even Roberts found her work product “constitutional” after changing a few words. Trump doesn’t look so bad when you compare him to these characters. His mistakes come from ignorance, the others seem to delight in their perversion of their office.

    It’s easy to understand why our host would hesitate to align himself with Trump if you consider Trump to be an exemplar of the category. But it does leave one with nothing but a giant sucking sound when considering options for the future leadership of the country.

    BobStewartatHome (a52abe)

  11. Patterico,

    I agree that Section 2(a) is unconstitutional, but I disagree with your characterization that “a bunch of Social Justice Warriors in the U.S. Government want to claim the ability to deny you a trademark [registration] if they find your trademark ‘disparaging.'”

    The “disparaging” portion of Section 2(a) has been in the Trademark Act since 1946 and the USPTO examining attorneys are required to apply that provision as best they can. Indeed, if the USPTO unilaterally decided it didn’t want to apply the statute, I would object to that and I’d wager you would too. I was an examining attorney before entering private practice and I was always uncomfortable in applying this provision, and so was glad to see the Federal Circuit’s decision, but this simply isn’t about SJWs at the USPTO.

    mh (3371d0)

  12. I was quoting from obama’s appearance on npr, and the last from red queen’s debate, apparently they didn’t see much wrong with that,

    narciso (d1f714)

  13. Europe seems a few ticks on the clock closer to meltdown than we:

    https://www.yahoo.com/news/brutal-headwinds-crush-europes-centre-left-heavyweights-054510038.html

    #nevertrump’s real problem is they are Vichy.

    DNF (755a85)

  14. What does NWA say? Or half a dozen other rap groups.

    What about copyrights on offensive songs, books, videos, etc? If the government can do this, why can’t they apply it to other IP recognition?

    Kevin M (25bbee)

  15. As in, “oh, you have a perfect first amendment right to express your _____ about ______, but we are not required to recognize your copyright, and we deny that it adds in any way to the Useful Arts.”

    Kevin M (25bbee)

  16. that’s probably the closest parallel, I’m sure there’s a trenchant argument for one not the other,

    narciso (d1f714)

  17. I think the federal communication act of 1934, screwed this up, for it did choose to discriminate on speech,

    narciso (d1f714)

  18. If only Trump was a lawyer and could argue in the Supreme Court. I think even Thomas would want that televised.

    Kevin M (25bbee)

  19. I was thinking near vs. minnesota, but that didn’t relate to trademarks but prior restraint of publications,

    narciso (d1f714)

  20. I don’t know if this is on point,

    http://www.brighthub.com/office/entrepreneurs/articles/61683.aspx

    narciso (d1f714)

  21. Patterico, you are looking pretty incoherent here. You have to know that the greatest threat here is Hillary, and yet you apparently so hate Trump that you are willing to help her win. How else to interpret your constant attacks on the only person who provides a chance, just a chance, to make things better.

    The Flight 93 Election article had it right. Please, go read it again.

    John Moore (508b53)

  22. Patterico, you are looking pretty incoherent here. You have to know that the greatest threat here is Hillary, and yet you apparently so hate Trump that you are willing to help her win. How else to interpret your constant attacks on the only person who provides a chance, just a chance, to make things better.

    Just how is that possible? You Trumpers like to toss that around, but have STILL yet to explain how that’s possible. You are on a website that is just as neverHillary as it is neverTrump. Please explain to me- use small hands words if you need to- how removing a vote completely from the pool is a vote for Hillary. The only thing I can come up with is you feel Trump’s base nationally is so small that Hillary will easily override it anyway. So now you’re pleading for a vote that won’t come from us because, basically, we don’t like Trump. At all. And look at your logic from the other side: a non vote for Hillary is a vote for Trump. Makes your comment look pretty damn stupid, doesn’t it?

    You, along with a whole bunch of other people have stated or implied that this election comes down to the Supreme Court. If it’s that important to you, you had better worry about the Senate. If I remember my Civics classes correctly (its been 40+ years) they’re the ones that do the “advise and consent” thing. The President merely selects names for that process.

    Bill H (971e5f)

  23. Patrick, I am mildly surprised that Ken White isn’t involved in this case somehow.

    …cheering for Ron Coleman…

    Bill H (971e5f)

  24. during the republican convention, there was a laser like focus, on melania’s flub to the exclusion of david clarke, guiliani, or other statements, during the democratic convention, it was mostly converse, with effusions about how moderate they were, however, the utter hatred displayed against law enforcement, and serving military didn’t get nearly the due, so no it’s nowhere near the same,

    narciso (d1f714)

  25. ” And look at your logic from the other side: a non vote for Hillary is a vote for Trump. Makes your comment look pretty damn stupid, doesn’t it?”

    Seems Hillary is pretty worried about just that:

    http://freebeacon.com/politics/clinton-campaign-worried-low-turnout-among-black-voters-florida/

    LBascom (2f3828)

  26. Seems Hillary is pretty worried about just that:

    http://freebeacon.com/politics/clinton-campaign-worried-low-turnout-among-black-voters-florida/

    LBascom (2f3828) — 10/1/2016 @ 9:21 pm

    So, answer my question. Explain to me how removing my vote from the election count helps Hillary. You like to project yourself as the smartest man in the room. Now is your chance to shine! Tell me how I’m helping Hillary. Go on, I triple dog dare you. I’m willing to bet you can’t.

    Bill H (971e5f)

  27. LBascom (2f3828) — 10/1/2016 @ 9:21 pm

    And no- I’m not going to bother with the article. I don’t give a damn less just how Hillary deals with her turnout problem. I’ve written both candidates off. If I’m not voting for her, how am I helping her?

    Bill H (971e5f)

  28. You can choose a ready guide in some celestial voice
    If you choose not to decide, you still have made a choice
    You can choose from phantom fears and kindness that can kill
    I will choose a path that’s clear
    I will choose freewill

    Bill H (971e5f)

  29. “So, answer my question. Explain to me how removing my vote from the election count helps Hillary.”

    Say you are a democrat that supported Sanders, but now you are upset that Sanders didn’t get the nomination so you refuse to vote, even though you have always voted for the democrat before. I that case, you are helping the republican by denying a vote for your party’s candidate.

    If you don’t belong to a party and never vote, then fine, not voting again doesn’t change anything. I get it, you are a person of no consequence. There are many millions like you.

    The reality is, either the democrat will be president, or the republican. There will be no other outcome. You have every right to do with your vote as you please, but refusing to vote is not a principled stand, it is standing aside and letting others determine your fate for you. If you want to be that guy, that’s on you.

    LBascom (2f3828)

  30. “I’ve written both candidates off. If I’m not voting for her, how am I helping her?”

    There more involved than just the candidates, there is the parties too. If the republican is elected, he will be filling cabinet positions from the republican bench. People like Gingrich, Christie, Bolton. He will be nominating supreme court justices from the right. He will be working with republican congressmen. This should be a major consideration, we aren’t just voting for the candidates personality, we are voting for a whole apparatus. Look at who Obama has surrounded himself with, and ask yourself if you really want to continue with who Hillary will surround herself with.

    If that doesn’t stir you to action, I don’t know what would.

    LBascom (2f3828)

  31. Seriously, folks?

    Donald Duckface is as much “the First Amendment candidate” as I am the next Miss Universe candidate. His statement that he wants the libel defenses rolled back? His lawsuits against people who criticize him?

    Not that I give a hoot whether a division of the National Felons League will need to reprint its overpriced Chinese-made souvenirs. But in other respects, his judicial appointments will not be pro-individual rights. They will be statist and authoritarian in the stamp of Kagan and Sotomayor, while recognizing the Second Amendment right to have a gun permit in NYC if you pay $100, 000 to the Police Athletic League.

    nk (9faaca)

  32. So the cubs are looking up, heh.

    narciso (d1f714)

  33. Malice seems to be an improbable standard.

    narciso (d1f714)

  34. @nk: His statement that he wants the libel defenses rolled back? His lawsuits against people who criticize him?

    Citizens United. You may have heard of it. Hillary explicitly pledges to nominate Supreme Court justices who will reverse this decision about a movie that criticized her.

    Trump has made no such pledge about libel law which he has no power to change anyway.

    So, as usual, your choices are between bad and worse, and Hillary is worse.

    Gabriel Hanna (bc876a)

  35. @BillH:You are on a website that is just as neverHillary as it is neverTrump.

    Not judging from the volume and intensity of posts critical of Trump vs posts critical of Hillary, and in most cases the Trump criticism is for something that Hillary does first, worse, or more of.

    We’re to take the #NeverHillary stance as assumed, I think.

    Gabriel Hanna (bc876a)

  36. Nah. My choices are forty years of three Ruth Bader-Ginzburgs or four years of Trump. I’ ll take the forty years of three Ruth Bader-Ginzburgs because it is more likely that America will still exist then, than it is after four years of Trump.

    nk (9faaca)

  37. @nk:I’ ll take the forty years of three Ruth Bader-Ginzburgs because it is more likely that America will still exist then, than it is after four years of Trump.

    Reasonable people can disagree about that. I think that we’ll see 40 years of one-party rule if Hillary gets elected, and that it would be worse than 4 years of Trump.

    Gabriel Hanna (bc876a)

  38. And when I say “rule” I mean that, the suppression of political opposition by the weaponization of the bureaucracy and the perversion of the justice system, with the media cheering it all on.

    I find that highly implausible with Trump. YMMV.

    Gabriel Hanna (bc876a)

  39. Say you are a democrat that supported Sanders, but now you are upset that Sanders didn’t get the nomination so you refuse to vote, even though you have always voted for the democrat before. I that case, you are helping the republican by denying a vote for your party’s candidate.

    Ummm, I’m not a Democrat, and although I’m amused by him, I am not a Sanders supporter.

    This is the exact same logic you’ve been using all along. It’s faulty. It explains nothing except your fealty to Trump.

    If you don’t belong to a party and never vote, then fine, not voting again doesn’t change anything. I get it, you are a person of no consequence. There are many millions like you.

    Alrighty, exactly how is my removal of my vote different from this nugget? Apparently you value party loyalty above your own conscious. History is littered with examples of just how well that works out. I’m a person of no consequence? Because I don’t want Trump? I held my nose in ’08 and ’12 and voted Republican even though both choices were demonstrably poor. Yah, I’m a person of no consequence.

    Say, I have an idea: instead of browbeating neverTrumpers for their political viewpoints, how about helping select better candidates?

    The reality is, either the democrat will be president, or the republican. There will be no other outcome. You have every right to do with your vote as you please, but refusing to vote is not a principled stand, it is standing aside and letting others determine your fate for you. If you want to be that guy, that’s on you.

    Ah, another restatement of the “It’s a binary choice!!” bullshit. Dude, I have accepted that Trump and Clinton are the nominees. I have looked at both, and found them lacking. I cannot figure out why you Trumpers just cannot get this.

    And yes- it is my vote to do with as I please, thank youu sir for your permission.

    Bill H (971e5f)

  40. We’re to take the #NeverHillary stance as assumed, I think.

    Gabriel Hanna (bc876a) — 10/2/2016 @ 7:12 am

    I don’t think you can point to a post where Patterico openly supported the Democrat.

    Bill H (971e5f)


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