This is kind of out of order of what I had planned, but figured since the court just made a ruling I should get started. It is a rather long commentary because I haven't previously provided a history for the readers to work with. But hopefully the reader will catch on fast.
***reason for posting this particular case****
The supreme court recently made a ruling in Matal v Tam. It is a case involving the patent and trademark office denying a trademark to a music ground called the slants under the disparaging clause.
***background in the case
Tam sought a trademark for the slants as the name of his band. An Patent and trademark office attorney shot down his request per the above reasons, he went to the appeal board and still didn't prevail. And Tam appears to have filed for a writ of mandamus (an extra-ordinary writ), which effectively is a petition to a court to get an [in this case federal] employee to perform some discretionary function-effectively to grant his trademark. Mandamus, like equity, is permissible when there is no remedy available at law. The trial court found the disparaging clause to be facially invalid, that is there exist no set of circumstances in which the law ever be valid-and is rarely granted. On appeal, the court found [ that the clause engages in viewpoint-based discrimination, that the clause regulates the expressive component of trademarks and consequently cannot be treated as commercial speech, and that the clause is subject to and cannot satisfy strict scrutiny. ]. So the government filed a writ of certiorari before the SCOTUS for review. The court granted, heard arguments, and made a ruling.
https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf
****Key concepts to understand:
As a background, Generally speaking the government may put restrictions on speech it is violates some category of speech like fighting words (gooding v Wilson) https://supreme.justia.com/cases/federal/us/405/518/case.html , true threats (Trigger warning?) (Virginia v Black) https://supreme.justia.com/cases/federal/us/538/343/case.html , (Trigger warning?) incitement (brandenberg v ohio) https://supreme.justia.com/cases/federal/us/395/444/case.html , obscenity (Trigger warning?) (miller v california) https://supreme.justia.com/cases/federal/us/413/15/, fraud, or conspiracy [also called speech integral to criminal activity] (Gibroney v Empire state) https://supreme.justia.com/cases/federal/us/336/490/case.html, and defamation which is often civil and historically so. Defamation is rather complex than to just provide a single case law not only because it varies so greatly. Legislatures are not permitted to create new unprotected categories. See Brown v entertainment Merchants association https://supreme.justia.com/cases/federal/us/564/786/opinion.html ( "Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. "). While the court didn't address these categorical factors, it is important to keep these things in mind going forward to try to understand where the ideas came from.
The government may create content neutral time, manner, or place regulations that serves a purpose other than the suppression of speech, is narrowly tailored to restrict no more speech than the evil targeted, and that also provide adequate channels of communication. If it doesn't leave an adequate channel of communications, it is an unconstitutional prior restraint-which can't even legally be issued ex parte. See Carroll v Princess anne (Trigger warning?) https://supreme.justia.com/cases/federal/us/393/175/case.html. Anyways back to time manner and place restrictions. For example, for community beautification a city may prohibit outdoor signs, while leaving people to hand bill, use direct mail, or use tv or radio broadcast. See City Council of vincent v keefe. https://supreme.justia.com/cases/federal/us/466/789/case.html .It may permit picketing up and down the street a resident lives on, but it doesn't allow picketing outside of a persons home in the interest of residential privacy. See Frisby v Schultz https://supreme.justia.com/cases/federal/us/487/474/case.html. Similarly restrictions may be imposed on broadcast radios during certain ours of the day (fcc v pacifica foundation), there may be sound restrictions (kovacs v cooper) , or we may prohibit disturbances or vulgarities in the schools (bethal school district v fraser. But as noted the speech regulated must be content neutral; so it cannot discriminate against the content (topic) of the speech, the view point of the speech addressed, or the particular speaker.
Obviously the government failed to make the case the regulation was a valid time manner or place restriction. Here the court ruled that restricting speech that was disparaging to others was view point based discrimination. But the government is of course is entitled to hiring speakers of their choice, and to advance the view point content of their choice, and in limited public fora choosing the speakers and content spoken. See greer v Spock https://supreme.justia.com/cases/federal/us/424/828/case.html or Cornelius v NAACP https://supreme.justia.com/cases/federal/us/473/788/case.html . Here the court sustained that the government may not practice view point discrimination eve in limited public foras and that [ the disparagement clause discriminates on the bases of “viewpoint.” ].
***governments arguments
The government also attempted to say that a trademark was a government program and subsidized speech and not private speech or in the alternative that it was commercial speech. The supreme court rightfully rejected these argument. If you are thinking that great, you can put a F***YOU on your license plate, you are wrong-at least for now. As the court in this case held [ This brings us to the case on which the Government relies most heavily, Walker, which likely marks the outer bounds of the government-speech doctrine. Holding that the messages on Texas specialty license plates are government speech, the Walker Court cited three factors distilled from Summum. 576 U. S., at ___–___ (slip op., at 7–8). First, license plates have long been used by the States to convey state messages. Id., at ___–___ (slip op., at 9–10). Second, license plates “are often closely identified in the public mind” with the State, since they are manufactured and owned by the State, generally designed by the State, and serve as a form of “government ID.” Id., at ___ (slip op., at 10) (internal quotation marks omitted). Third, Texas “maintain[ed] direct control over the messages conveyed on its specialty plates.” Id., at ___ (slip op., at 11). As explained above, none of these factors are present in this case. </i>] But anyways, the SCOTUS in rejecting the governments position found [ <i>“[F]ederal law does not create trademarks.” B&B Hardware, supra, at ___ (slip op., at 3). Trademarks and their precursors have ancient origins, and trademarks were protected at common law and in equity at the time of the founding of our country..... Congress stepped in to provide a degree of national uniformity, passing the first federal legislation protecting trademarks in 1870. See Act of July 8, 1870, §§77–84, 16 Stat. 210–212. The foundation of current federal trademark law is the Lanham Act, enacted in 1946. See Act of July 5, 1946, ch. 540, 60 Stat. 427. ... This system of federal registration helps to ensure that trademarks are fully protected and supports the free flow of commerce. ]. Although passively, it is a way of saying that trademarks are created in nature by people, and Government chose to protect that pseudo-property with force. It may protect trademarks even if they aren't registered [ Most important, even if a trademark is not federally registered, it may still be enforceable under §43(a) of the Lanham Act, which creates a federal cause of action for trademark infringement. ] Although there are benefits to registrating a trade mark. [ Registration on the principal register (1) “serves as ‘constructive notice of the registrant’s claim of ownership’ of the mark,” ibid. (quoting 15 U. S. C. §1072); (2) “is ‘prima facie evidence of the validity of the registered mark and of the registration of the mark, of the owner’s ownership of the mark, and of the owner’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate,’” B & B Hardware, 575 U. S. ___ (slip op., at 3) (quoting §1057(b)); and (3) can make a mark “‘incontestable’” once a mark has been registered for five years,” ibid. (quoting §§1065, 1115(b)); see Park ’N Fly, 469 U. S., at 193. Registration also enables the trademark holder “to stop the importation into the United States of articles bearing an infringing mark.” 3 McCarthy §19:9, at 19–38; see 15 U. S. C. §1124. ].
The Government, as previously mentioned, tried to say that trademarks are commercial speech and thus subject to limitations. Although commercial speech has less protection than private speech, see for example Rowan v Us postal department which was countered by Bolger v Young Drug Products. The SCOTUS declined to make a ruling on whether a trademark was commercial speech, the government invoked central hudson (which is more about truth in advertising) but failed to meet the requirements of central hudson. However, the SCOTUS skipped the misleading analysis where that could have been the end of it. They, instead, jumped to the point that the government had no substantial interest in regulating such speech. Furthermore, the court invoked this [" Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting). "]. So really that can be construed as the supreme court literally telling social justice warriors calling for censorship to go fornicate themselves, well maybe not in those words. The court likewise slapped social justice warriors across the face in saying the disparaging remarks was not narrowly tailored (it restricts more speech is necessary to serve a compelling gov't interest),[A simple answer to this argument is that the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted. ]. The court likewise held that it was overly broad. [ The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution. Is it conceivable that commerce would be disrupted by a trademark saying: “James Buchanan was a disastrous president” or “Slavery is an evil institution”? ]
***about the disparaging clause
The disparaging clause as reported by the court [ At issue in this case is one such provision, which we will call “the disparagement clause.” This provision prohibits the registration of a trademark “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols or bring them into contempt, or disrepute.” §1052(a). 2 This clause appeared in the original Lanham Act and has remained the same to this day. See §2(a), 60 Stat. 428. ] . The procedures are as followed for a PTO attorney [ When deciding whether a trademark is disparaging, an examiner at the PTO generally applies a “two-part test.” The examiner first considers “the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services.” Trademark Manual of Examining Procedure §1203.03(b)(i) (Apr. 2017), p. 1200–150, http://tmep.uspto.gov. “If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols,” the examiner moves to the second step, asking “whether that meaning may be disparaging to a substantial composite3 of the referenced group.” Ibid. If the examiner finds that a “substantial composite, although not necessarily a majority, of the referenced group would find the proposed mark . . . to be disparaging in the context of contemporary attitudes,” a prima facie case of disparagement is made out, and the burden shifts to the applicant to prove that the trademark is not disparaging. Ibid. What is more, the PTO has specified that “[t]he fact that an applicant may be a member of that group or has good intentions underlying its use of a term does not obviate the fact that a substantial composite of the referenced group would find the term objectionable.” Ibid. D ]You may see in the original (not talking about the procedures) similar things in some antiquated defamation or fighting words law such as this statute ( http://law.justia.com/codes/georgia/2010/title-16/chapter-11/article-2/16-11-40 ) in Georgia ruled unconstitutional ( https://casetext.com/case/williamson-v-state-230 ) back in 1982. At one time defamation was seen as fighting words, things that could actually lead to combat and duels, but that i sno longer the case. See Garrison v Liousianna ["In most cases, the connexion between cause and effect exists between the subject of this chapter and that of a subsequent one -- Of Duels. Defamation, either real or supposed, is the cause of most of those combats, which no laws have yet been able to suppress. If lawgivers had originally condescended to pay some attention to the passions and feelings of those for whom they were to legislate, these appeals to arms would never have usurped a power superior to the laws; but by affording no satisfaction for the wounded feelings of honour, they drove individuals to avenge all wrongs of that description, denied a place in the code of criminal law. Insults formed a title in that of honour, which claimed exclusive jurisdiction of this offence. "- Livingston, A System of Penal Law for the State of Louisiana, at 177 (1833).
Even in Livingston's day, however, preference for the civil remedy, which enabled the frustrated victim to trade chivalrous satisfaction for damages, had substantially eroded the breach of the peace justification for criminal libel laws. In fact, in earlier, more violent, times, the civil remedy had virtually preempted the field of defamation; except as a weapon against seditious libel, the criminal prosecution fell into virtual desuetude. Changing mores and the virtual disappearance of criminal libel prosecutions lend support to the observation that,". . . under modern conditions, when the rule of law is generally accepted as a substitute for private physical measures, it can hardly be urged that the maintenance of peace requires a criminal prosecution for private defamation."]. You may also see that the United states recognized that flag burning can be lawful if done for expression and outside of much broader ordinance made against burning in general for a high risk of fire. See Texas v Johnson https://supreme.justia.com/cases/federal/us/491/397/case.html . The courts some 30-40 some years ago recognized that speech shouldn't be shut down for the violent actions of others for otherwise protected speech, though you could still be convicted for calling someone a "G** D*** racketeer" if done face to face. Chaplinksy v New Hampshire https://supreme.justia.com/cases/federal/us/315/568/case.html . So needless to say, the government was still using the language of a statute that had become a legal dinosaur to deny a trademark to the group called the slants. There are many of these old dinosaurs out there, and there are many new dangers to the freedom of speech that I haven't yet address but will in the future.
**minor issues
although not to important, Tam untimely (he didn't raise in the trial court) argued that a person under the act was limited to a "natural and juristic person", and this could not apply to ethic or racial groups. Despite being untimely the court still addressed the argument based upon the governments writ for certiorari, and rejected Tam's claim.
****
the decision is posted at https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf
I will let the reader read, and let the reader see how the court reached their decision. Obviously the courts choose many different case laws than I did, but that is ok so long as the arguments are understood and I think I added some substance to the background that the court didn't add. If I had just copied and pasted the whole of the text, I might not only have the cheetah bot stalking me, people may forget to click that upvote after a commentary and 26 page copy and paste opinion.
