Patterico's Pontifications

1/18/2017

A Major First Amendment Case Will Be Argued Today at the Supreme Court

Filed under: General — Patterico @ 6:45 am



Can the United States government refuse to give you a governmental benefit because it thinks your speech disparages a group of people, or even a belief? That is the issue that will be argued this morning in the Supreme Court.

The Court will hear argument today in Lee v. Tam, a major First Amendment case. Michelle K. Lee, the Petitioner (who is appealing) is the Director of the United States Patent and Trademark Office (I’ll call them the USPTO in this post). Simon Shiao Tam, the respondent (defending the judgment below) is a member of The Slants, a rock group whose members are Asian. The group sought trademark protection for the name “The Slants” as an effort to “take back” the term, much as many black Americans have done with another racially ugly word. The USPTO denied the trademark, citing the disparagement clause of the Lanham Act.

The case has significance, not just for speech generally, but also for the Redskins trademark, which has also been rejected by the USPTO pursuant to the disparagement clause.

You can read the brief filed by the Respondent (the Slants) here. It presents the issue in this way:

The disparagement clause in section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), prohibits the registration of a trademark that “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The question presented is whether the disparagement clause is contrary to the First Amendment.

The names on the brief include Eugene Volokh of the Volokh Conspiracy, and my own pro bono lawyer Ron Coleman, about whom more below.

The answer to the question presented to the Court should seem obvious. The central purpose of the First Amendment is to prevent the government from engaging in viewpoint discrimination — and viewpoint discrimination is precisely what the disparagement clause of the Lanham Act is all about. Sure, this may seem benign to some — who wants to see Asians or Native Americans disparaged? But it’s not benign, at all. First of all, this provision would allow the term “Scientology” to be approved as a trademark, while anti-Scientology trademarks could be rejected. When the government puts its imprimatur on the trademark of a cult, but refuses one to people who seek to expose the cult, that is not benign. But in addition, it’s simply not the business of government to be doling out privileges, or refusing them, based on the viewpoint of the people seeking the privilege.

We should get a sense today of how the justices feel. I’m cautiously optimistic.

A side note: today’s oral argument will be heard by eight justices, not nine. Donald Trump is two days from his inauguration, and while he has been meeting with potential replacements for Supreme Court nominees, he has not yet chosen one. This raises the issue whether Trump’s new justice, who is likely to be confirmed before this case is decided, could participate in the decision, even though he or she will not have participated in the arguments. A January 12 piece in the American Bar Association Journal notes that, in the past, cases have been decided only by justices who participated in oral argument. This is a matter of tradition, not law, and it could be broken:

The new justice could rule after reading briefs and listening to the oral arguments. But, in the past, new justices have ruled in argued cases only when they are reargued.

One of the experts who spoke with Supreme Court Brief is William Suter, the former clerk of the Supreme Court. “I know of no statute or rule that would prohibit a new justice from participating in such a case,” he said.

Suter nonetheless had misgivings about a new justice deciding cases already argued. “I think the ‘common sense rule’ would be that a new justice would not participate,” he told Supreme Court Brief. “It would look fishy, especially if the newbie voted with the majority in a 5-4 decision.”

The article notes that the Supreme Court has not scheduled arguments in some cases that usually would have been argued at this point. The court appears to be waiting for a new justice who might prevent a 4-4 split.

This tends to suggest that the Slants case is considered by the existing justices to be one of the less controversial cases on the docket. I hope so, and cautiously expect that to be the case. While I do not want to jinx Ron Coleman (one of the lawyers for the Slants), it would not surprise me to see a lopsided vote striking down the disparagement provision, such as 8-0, or 7-1. But we should know much, much more after today’s oral argument. Many of the justices tend to signal strongly in oral argument how they will vote. Time permitting, I’ll provide an analysis of the oral argument as soon as I can get to it.

Finally, three cheers for Ron Coleman. In 2015, he became a partner this year at Archer & Greiner, a firm which has definitely had its profile elevated by virtue of Ron’s involvement in the Slants case — and I know they appreciate him for that. In addition to his work for The Slants and in running the Likelihood of Confusion blog, Ron, along with the excellent and reliable Bruce Godfrey of Jezic & Moyse LLC, is still defending me in a censorious lawsuit brought by convicted bomber and perjurer Brett Kimberlin. Not to mention that Ron — along with Kenneth P. White of Brown White & Osborn LLP and the essential Popehat blog — achieved an excellent result from me in another silly case in which I was sued, in which the plaintiff dismissed the claims without getting a cent or any other concession from me.

All three of these gentlemen are excellent lawyers, and they work for pay in addition to their copious and admirable pro bono work. Please keep them in mind.

[Cross-posted at RedState.]

25 Responses to “A Major First Amendment Case Will Be Argued Today at the Supreme Court”

  1. Ding.

    Patterico (115b1f)

  2. even if i squint really really hard i can’t see how this isn’t free speech

    happyfeet (28a91b)

  3. Yes, if the USPTO slant prevails, it would be a chink in the armor of the First Amendment and a slippery slope to where other venerable rights could be shanghaied.

    nk (dbc370)

  4. Hopefully, Professor Volokh and Mr. Coleman will nip it in the bud.

    nk (dbc370)

  5. The lefties are always gunning for another chink in the armor when it comes to free speech.

    Cruz Supporter (102c9a)

  6. #3 nk, whoops, sorry, Mr nk, I didn’t see that you had already played the ‘chink in the armor’ card. (LOL)

    Cruz Supporter (102c9a)

  7. So where we they, when it came to nwa, its a pernicious term but got sanction of whether it is used seems foolhardy

    narciso (d1f714)

  8. Nothing wrong with dropping the bomb twice, CS.

    nk (dbc370)

  9. oh that was good

    happyfeet (28a91b)

  10. this is adorbs btw I wish I had more time to poke around at it

    happyfeet (28a91b)

  11. Greetings:

    Me, I’m thinking we should amend the Constitution to include”

    “Sticks and stones, may break my bones, but words will never harm me.”

    11B40 (6abb5c)

  12. I wonder if they’ll allow cameras in the courtroom!

    Cruz Supporter (102c9a)

  13. From happyfeet’s link:

    (It’s very exciting for Fox News to get their hands on an actual fact and you will have to forgive [Tucker Carlson] for maybe over-blowing his own horn.)

    Ha, ha, ha, ha.

    nk (dbc370)

  14. I wonder if they’ll allow cameras in the courtroom!

    Cruz Supporter (102c9a) — 1/18/2017 @ 8:23 am

    Seriously. There is no reason we shouldn’t have streams of any court in session, especially the Supreme Court.

    Patrick Henry, the 2nd (e04f50)

  15. Re: The prohibition against registration of a trademark that disparages, or brings into contempt, or disrepute, any person, living or dead, or institutions, beliefs, or national symbols.

    You could really have some unpalatable ones if there were no limitations. Some of which would onl be unpalatable to a section of the population, but then you have a problem with the composition of the jury.

    And on the oher hand, there are some symbols and institutions that should be brought into disrepute.

    I think there are only two places where subjective judgments like that are allowed to play a role: At the ballot box and in the jury room.

    If you had a jury, selected at random, which could reject trademarks on the grounds they are unpalatable, that should be OK. The best thing actually is to leave this power to reject up in he air.

    Sammy Finkelman (0cf810)

  16. Yes, if the USPTO slant prevails, it would be a chink in the armor of the First Amendment and a slippery slope to where other venerable rights could be shanghaied.

    Four — count ’em four! — microaggressions in one comment. Brilliantly done, sir.

    JVW (6e49ce)

  17. ==this is adorbs btw I wish I had more time to poke around at it
    happyfeet (28a91b) — 1/18/2017 @ 8:10 am==

    Yes, everyone must go to happyfeet’s link and watch Tucker Carlson’s scoop on the fake paid protester “company”:
    What a hoot. Demand Protesters on retainer. Performance art, indeed. Do Jan Schakowsky and Robert Creamer have any bearded offspring, btw? (This is not a question for you to research, Sammy) I’d guess it was test project/snare attempt out of a J-school class somewhere. And unfortunately they were able to catch a few news organizations before they ran into Tucker’s buzzsaw.

    It’s funny to watch Tucker methodically and intelligently expose the fake on national TV and in the process provide everyone a good lesson about being gullible to “if it’s too good to be true…” stories.

    elissa (85f717)

  18. JVW, I didn’t even think to go there, but you are right! S, C, S, S all spelled out in what you quoted.

    John Hitchcock (9de721)

  19. I hope you don’t flip out over this, John. I wouldn’t purposely offend you for all the tea in China. You know that the orientation of my comments is often humorous and I don’t kow-tow to political correctness.

    nk (dbc370)

  20. I will be contrarian and contend that this and all trademarks should be refused on First Amendment grounds.

    A trademark is the claim that the trademark holder has the exclusive right to an expression of speech, with the ability to prohibit or limit the right of others to use that expression of speech, thus limiting their First Amendment right.

    Kishnevi (18dae1)

  21. Here is a new article about today’s Supreme Court the slants case with some reporting on the justices’ questioning.

    http://www.billboard.com/articles/news/7661723/the-slants-supreme-court-offensive-trademarks

    elissa (85f717)

  22. Interesting feedback, so kagan and Kennedy seem the reasonable ones, Thomas would probably affirm the trademark, alto I’m not sure,

    narciso (d1f714)

  23. Here is a new article about today’s Supreme Court the slants case with some reporting on the justices’ questioning.

    http://www.billboard.com/articles/news/7661723/the-slants-supreme-court-offensive-trademarks

    I have my own post coming with my interpretation of the argument today. It drops in about half an hour. It’s already at RedState. I am giving them their usual hour of exclusivity.

    I think Ron Coleman wins.

    Patterico (115b1f)

  24. I will be contrarian and contend that this and all trademarks should be refused on First Amendment grounds.

    A trademark is the claim that the trademark holder has the exclusive right to an expression of speech, with the ability to prohibit or limit the right of others to use that expression of speech, thus limiting their First Amendment right.

    There is no first amendment right to commit fraud, which is what a breach of trademark is. People often forget that the purpose of the trademark law is to protect consumers, not trademark holders. Hence the term “likelihood of confusion”. (Yes, the recent addition of the bastard concept “trademark dilution” works against this principle; that’s precisely why I’m so opposed to it.)

    For that matter, though, copyrights are also not a first amendment violation because they’re explicitly authorized in the constitution, and it is universally accepted that the Bill of Rights did not nullify anything in the original constitution.

    Milhouse (40ca7b)


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