December 23, 2015
The federal law exclusion of "disparaging" trademarks violates the First Amendment, the U.S. Court of Appeals for the Federal Circuit said, in a case about The Slants.
And now there's there will be a split in the circuits, because if the 4th Circuit went goes the other way in the case about the Redskins, so it's which will make it likely the Supreme Court will take the case. Eugene Volokh spells out why he thinks the Federal Circuit got it right. Super-short answer: It's viewpoint discrimination. The arguments on the other side are basically: it's commercial speech (and therefore entitled to less protection), and it's a government subsidy (and government can choose what speech it subsidizes).
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I don't think the Fourth Circuit has made its decision yet, so it is not clear if there will be a split. It's possible the Fourth Circuit could agree with the Fed Circuit and the Redskins, and then it is not clear to me that SCOTUS would take the case.
But the "other side" never seems to ask the question "WHO determined what is 'disparaging'?" They're under the belief that they will always be the one to make that decision. As the rise of Trump is showing, people are getting sick of things and things might get ugly for the "elites" before much longer.
Don't worry.
Obama will just issue an Executive Order banning the use of the term Redskins.
Better yet, Tony Kennedy will find something in the 14th Amndment disallowing the word.
@yoobee
Thanks. I made the corrections.
I thought what yoobee thought, so I see I was right (I really did not know).
I saw a couple of attorneys arguing about this on The Kelly File last night. It is remarkable to me the extent to which many people are eager to restrict free speech with "offends" them or others, and do not see the possible ramifications down the road for such restrictions. They've got some of these kinds of laws in Europe and it is a sorry situation.
I don't think you could pass the Bill of Rights today.
Seriously, is there any government action that can't be construed as a subsidy to somebody?
Good. It's ridiculous that, for the protection of Asians, an Asian group cannot Trademark "The Slants" while a non-Asian group could have.
damikesc said...
But the "other side" never seems to ask the question "WHO determined what is 'disparaging'?" They're under the belief that they will always be the one to make that decision. As the rise of Trump is showing, people are getting sick of things and things might get ugly for the "elites" before much longer.
12/23/15, 9:00 AM "
Yes indeed; who is the ultimate and infallible arbiter of what is disparaging? The offended assume they are the only ones who have the undisputed right to be offended while ignoring that their claim of being offended my well be offensive to those who they claim are offending them or are considered offensive to others. Its a circular firing squad.
Bernie never goes.
Isn't that evident.
He's full of (socialist) s**t.
The other night I was watching a documentary about Gore Vidal. During the sixties, he defended the right of peace protesters to wave the Viet Cong flag. He claimed that the First Amendment was sacrosanct and protected exactly that kind of speech. His interlocutor nodded sagely and agreed with him. I'm pretty sure that you would not find the same agreement with those high ideals if the flag in question were the Confederate one.
@Tank
Re: Passing a Bill of Rights today. No, a Bill of Rights could still be passed, but it would be remarkably short.
~ Right to abort
~ Right to welfare
~ Right to abort
I predict the supreme court will do as little as necessary to erode our rights and increase the power of the aristocracy. But they will step in if necessary. Progress must continue.
As long as there is an incentive for the counter-revolution...
"damikesc said...
But the "other side" never seems to ask the question "WHO determined what is 'disparaging'?" They're under the belief that they will always be the one to make that decision."
It's worse than that. They believe that their opinions are objective truth.
If you speak out in disagreement, you're just a hater or corrupt. It couldn't possibly be that you genuinely disagree, much less that you might have a point.
Listen to Obama speak after any legislative loss. It's not that Republicans have a different idea of what's best. Everyone knows his gun control proposal would save lives and make unicorns smile. No, the Republicans oppose his bill because they don't care about dead children and see political advantage in opposing him. (Perhaps because opposing him appeals to evil racists who would rather see children die than let a black man save them.) It's nuts.
I support free speech ABSOLUTELY, unless I don't like what you say because I find it to be racist, sexist hateful or triggering. But other than that I support free speech ABSOLUTELY.
gspencer said: "Re: Passing a Bill of Rights today. No, a Bill of Rights could still be passed, but it would be remarkably short.
~ Right to abort
~ Right to welfare
~ Right to abort"
Add ~ Right to a free college education.
Why isn't this a valid time/place/manner restriction? From this slant, it's not viewpoint discrimination, just a restriction as to the manner of expressing that viewpoint. The Slants can even continue calling themselves The Slants, they just can't put a little circled R next to it.
And, if The Slants aren't allowed to register their trademark, anyone can use The Slants. If they can register, other people's speech is restricted. So the court found on the side of more speech, not less.
Without speaking on the constitutionality, I want to point out that the original decision itself was based on specious reasoning. I actually was interested enough to read the 96 page report by the 'special master' hired by the trademark office. The report lists a handful (literally fewer than 10) of examples where the term Redskins was ostensibly used in a pejorative manner. All the examples occurred before World War II. Most of the examples were questionable, i.e. 'The Army achieved victory over the Redskins.' Given the motivations of the Special Master, and given the existence of the internet, and Lexis/Nexis this is incredibly sparse evidence.
You can do this yourself -- go search for incidents of the pejorative use of Redskin. Now compare it to searches for pejorative uses of other terms that we agree are disparaging.
And then it listed how dictionaries increasingly added the modifier 'offensive' to their definitions over the last few decades. So how did that happen? Well, given there are activist groups since at least the 1960's, I suspect that, given the lack of any other evidence of the term Redskins being *used* pejoratively, my suspicion is that the groups spent their time amongst other ways in calling up these dictionary companies to try to get things changed. Why? To demonstrate their power to their donors.
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