Fourth Circuit Delivers First Amendment Ass-Kicking

June 28, 2013

By J. DeVoy

This is not a Star Trek order.  There are no pithy jokes here.  There is, however, a shocking exposé of just how insidious the government can be in coercing silence when you speak out against outdated, incorrect, and even dangerous “conventional wisdom.”

Cooksey v. Futrell, et al., Case No. 12-2084, 2013 WL 3215240 at *1 (4th Cir. June 27, 2013).

Steve Cooksey ran a blog advocating a low-carbohydrate, high-protein diet.  This diet and its permutations are generally known as known as a “paleo,” “primal” or “caveman” diet, and is based on eliminating historically recent additions to the human diet, such as processed grains.  This more or less inverts the USDA’s food pyramid (or triangle, depending on what generation you are), putting meat at the base of the pyramid with rough, leafy greens, and treating carbohydrate-laden foods like bread as less important.  Like anything people feel strongly about, the ambassadors of the paleo diet can be abrasive and annoying.  But, it works.

Cooksey’s backstory is remarkable, but surprisingly common among health advocates.  A Type II (adult-onset) diabetic, Cooksey was rushed to a hospital on the verge of a coma in 2009.  His dietitians advised him to eat a diet high in carbohydrates.  Cooksey, however, investigated matters himself and arrived at a diet high in protein and low in carbohydrates.  His blood sugar normalized and he was able to stop using insulin.  With a combination of diet and exercise (rather than, say, “fat acceptance”), Cooksey lost 78 pounds and felt better than ever before.

Paying it forward, Cooksey opened his blog, diabetes-warrior.net, in early 2010.  Cooksey used the blog to talk about his diet and lifestyle changes. He even included a disclaimer that he was not a licensed medical profession and had no medical qualifications – similar to how legal bloggers are quick to reminder readers that nothing they say online is legal advice.  The overarching theme of Cooksey’s blog was that high-carbohydrate diets caused more diabetes.  During the months of December 2011 and January 2012, Cooksey’s blog had 20,000 unique visitors.

Then Cooksey made the mistake all new red-pill types do: He explained his views to a weak and deliberately helpless public.  In July 2012, Cooksey attended a nutritional seminar for diabetics.  The seminar’s speaker advocated a high-carbohydrate diet for diabetics; Cooksey responded by advocating a low-carbohydrate diet instead.  An attendee at the seminar was so “””offended””” that he or she reported Cooksey to the North Carolina Board for Dietetics/Nutrition (the “Board”), claiming Cooksey’s advocacy was actually the unlicensed practice of dietetics.  Under North Carolina law governing dietetics, only licensed dietitians may provide nutrition care services, which have a broad definition that includes:

a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.
b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
c. Providing nutrition counseling in health and disease.
d. Developing, implementing, and managing nutrition care systems.
e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.

Under North Carolina law, each and every act of unlicensed practice of dietetics is a separate misdemeanor.

The Board contacted Cooksey.  It told him that he would need to change his website.  It also told him that it was statutorily entitled to get an injunction against him.  Cooksey, fearing civil action, reluctantly complied with the Board’s initial demands to change his website, removing parts that might have been considered “advice” to visitors.

The Board told Cooksey it would review his website and tell him what he could and couldn’t say without a dietitian’s license.  After reviewing Cooksey’s site, the Board got back to him with pages and pages of comments.  The Board’s message was clear: Fix it – or else.  Again, Cooksey acquiesced – this time in fear of civil and even criminal penalties.  Despite not communicating with the Board, it nevertheless sent Cooksey a letter, noting that he had made the requested changes, and tacitly warning Cooksey that it would “continue to monitor the situation.”

After receiving this letter, Cooksey filed suit under 42 U.S.C. § 1983 for the Board’s actions chilling his First Amendment protected speech.  He also sought a declaratory judgment that North Carolina’s statutes were unconstitutional both facially and as-applied.  The Board moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of standing and lack of ripeness, and 12(b)(6) for failure to state a claim.  The district court granted the motion, holding that “voluntarily removing parts of one’s website in response to an inquiry from a state licensing board is not a sufficient injury to invoke Article III standing.”  The court also found that Cooksey was not subject to actual or imminent enforcement of the Board’s draconian laws.

At first blush, it seems that the district court took an unusually charitable view toward the Board’s actions.  Many who read this blog would disagree with the outcome.  Cooksey disagreed.  And so, too, did the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit’s panel – which included former United States Supreme Court Justice Sandra Day O’Connor sitting by designation – reviewed the dismissal de novo, or anew (conducting a new, independent analysis of the facts that were before the district court).  The Court of Appeals embarked on an analysis of justiciability with two old law school (and in one case, law practice) favorites, standing and ripeness.  The analysis is considerable, going on for many pages.  Some highlights are excerpted below:

On the question of standing:

In First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of “self-censorship, which occurs when a claimant is chilled from exercising h[is] right to free expression.” Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal quotation marks omitted).

However, this anticipated cannot just be speculative or the fruit of conjecture.  The appeals court quickly outlined how Cooksey’s case allowed him to have standing, largely due to the Board’s aggression:

In the present case, we not only have evidence of specific and — unlike NCRL — unsolicited written and oral correspondence from the State Board explaining that Cooksey’s speech violates the Act, but we also have a plaintiff who stopped engaging in speech because of such correspondence, and an explicit warning from the State Board that it will continue to monitor the plaintiff’s speech in the future. See J.A. 18 (Compl. ¶ 63-64) (Burill told Cooksey “that he and his website were under investigation” and that the State Board “does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.”); id. at 39 (red-pen review) (“You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.”); id. at 66 (Burill email) (“[W]e would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided.”); id. at 105 (Burill letter) (“[T]he Board reserves the right to continue to monitor this situation.”). Therefore, we have no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.

The Board’s aggression was also helpful to Cooksey in showing a credible threat of prosecution.  From there, his complaint easily satisfied the requirements of causation – that his injury was caused by the conduct he complained of – and redressibility, which requires a non-speculative likelihood that his injury would be redressed by a favorable judicial decision.

Unfortunately, the opinion gave some daylight to the Board’s position.  If the laws the Board enforces are professional regulations that do not abridge the First Amendment, such as certain limited limitations placed on attorney speech by state professional conduct rules, then Cooksey may ultimately not prevail.  However, because that is question of the case’s merits – how the facts and the law mesh in court – rather than one of standing, or Cooksey’s ability to bring his claim to Court in the first place, this potential defense cannot keep Cooksey out of court (for now).

As for ripeness:

Much like standing, ripeness requirements are also relaxed in First Amendment cases. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“The primary reasons for relaxing the ripeness analysis in th[e] [First Amendment] context is the chilling effect that potentially unconstitutional burdens on free speech may occasion[.]”). Indeed, “First Amendment rights . . . are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.” Id. (internal quotation marks omitted).

The Court then gave the Board a little more abuse for soiling its own bed.

In the same way, Cooksey’s claims present the question of whether the Act and actions of the State Board unconstitutionally infringe on Cooksey’s rights to maintain certain aspects of his website. No further action from the Board is needed: it has already, through its executive director, manifested its views that the Act applies to Cooksey’s website, and that he was required to change it in accordance with the red-pen review or face penalties.

In its conclusion, the court of appeals vacated the district court’s order dismissing Cooksey’s complaint and remanded the case for a proceeding on the merits.  The Board can always ask the Fourth Circuit to stay its mandate and grovel with thousands of others to be the 1% whose cert petition the Supreme Court grants.  If nothing else, it will buy them time.  Hopefully, this opinion will leave a mark on the Board and make abusive government entities everywhere think twice before making any “suggestions” to the lowly citizenry they benevolently manage.  Specifically for the Board, its bad dream just got another life, Freddy Krueger-style.

A closing thought: North Carolina does not have an Anti-SLAPP law – not even a mediocre one that could be made good, like Nevada’s (which, starting October 1, 2013, gets a nice octane boost).  While § 1983 claims allow prevailing non-governmental parties to seek their attorneys’ fees under § 1988(b), those fees are discretionary, while prevailing Anti-SLAPP fees are mandatory – and more expeditiously awarded.  While state law-based Anti-SLAPP laws do not always work as drafted in federal court, there is a serious question whether such a statute’s existence or use would have led to a different outcome without an appeal – or any litigation at all.


Federal Circuit’s COCKSUCKER Decision Sucks

December 20, 2012

cork soaker

As many long-time readers know, Section 2(a) of the Trademark Act is one of my pet peeves. This is the section of the Trademark Act that gives pretty much unfettered discretion to a trademark examiner to deny a trademark registration on the basis that the mark itself is “immoral” or “scandalous.” The Federal Circuit just decided In Re Fox, in which it reaffirmed some very bad law, and in which it lacked the integrity to address some Constitutional fictions upon which most 2(a) denials are based.

“[n]o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it[] (a) [c]onsists of or comprises immoral, deceptive, or scandalous matter.” 15 U.S.C. § 1052.

One of the most absurd elements of a 2(a) denial is that the evidentiary standard is so open to abuse. An examiner may prove “immorality” or “scandalousness” by simply establishing that the mark is “vulgar.” In re Boulevard Entm’t, Inc., 334 F.3d 1336, 1340 (Fed. Cir. 2003). Essentially, if the examiner finds a single online dictionary or chat board where someone says “that’s vulgar,” then that is usually enough for the examiner, the TTAB, and the Federal Circuit.

So, another 2(a) denial is just a “ho hum” event. But, this portion of the opinion shows just how little respect the Federal Circuit has for Constitutional issues. I mean, come on guys, at least try and make it look like you didn’t just mail it in.

The prohibition on “immoral . . . or scandalous” trademarks was first codified in the 1905 revision of the trademark laws, see Act of Feb. 20, 1905, Pub. L. No. 58- 84, § 5(a), 33 Stat. 724, 725. This court and its predeces- sor have long assumed that the prohibition “is not an attempt to legislate morality, but, rather, a judgment by the Congress that [scandalous] marks not occupy the time, services, and use of funds of the federal government.” In re Mavety Media Grp. Ltd., 33 F.3d 1367, 1374 (Fed. Cir. 1994) (quotation marks omitted). Because a refusal to register a mark has no bearing on the applicant’s ability to use the mark, we have held that § 1052(a) does not implicate the First Amendment rights of trade- mark applicants. See id. (Op. at 2)

I find it outrageous not just because the court is wrong, but because the court was so glib and dismissive of the First Amendment.

Trademarks propose a commercial transaction; speech that proposes a commercial transaction is “commercial speech” and thus subject to First Amendment protection. Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976). Trademarks convey messages about the type, cost and quality of the product or service associated with the mark. See Friedman v. Rogers, 440 U. S. 1, 11 (1979). The trademark is a tightly targeted bit of expressive activity that seeks to persuade a potential customer to choose one product over another, either due to the identification of goods or to the communicative element of the trademark itself.

Thus far, all USPTO decisions regarding the constitutionality of Section 2(A) rely upon the improperly decided case In re Robert L. McGinley, 660 F.2d 41 (Fed Cir. 1981).

McGinley is where we get the idea that since trademark applicants are still free to use the trademarks, then there is no abridgment of speech if your trademark is denied registration due to its content. However, this reasoning is simply shoddy and contrary to a body of First Amendment jurisprudence. For example, in striking down New York’s “Son of Sam” law, which prohibited criminals from profiting from writing books about their crimes, the Supreme Court held “[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.” Simon & Schuster v. New York State Crime Victims Bd., 502 U.S. 105, 115 (1991). In the Son of Sam case, the authors were still free to write, but were denied the financial benefits of their labors. That was the end of that law. This appears to completely dispense with the McGinley reasoning.

Bad Frog Brewery, Inc. v. New York States Liquor Authority, 134 F.3d 87 (2d Cir. 1998) analyzed a similar issue. In that case, the appellant sought to use a trademark of a frog giving the finger. The Second Circuit held that since trademarks are commercial speech, prohibition on use of so-called “offensive” trademarks did not advance the stated governmental purpose of protecting children from vulgarity or promoting temperance, nor was it narrowly tailored to serve that purpose. Not binding on the Fed. Cir., but I think that the Fed. Cir. is the wrong place to challenge McGinley. There is no indication that the Fed. Cir. will ever admit that it was wrong in McGinley, and every time it gets a chance, it doubles down.

Finally, there can be no clearer authority for the death of Section 2(a) than Lawrence v. Texas. (“The fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”)

“Morality” is not a valid reason to confer or deny a governmental benefit – instead the government must articulate a reason why registration of a mark might be harmful, and then apply that reason to the particular circumstances at hand, in a narrow manner. The government has done none of this in this case, nor in any other 2(a) denial.

2(a) Delendum Est!


Brazil denies reality, considers banning racy lingerie ad

September 28, 2011

By J. DeVoy

It has not been a good week at Tom Brady’s house.  First the Patriots lost to the Buffalo Bills, perennial failures and four-time consecutive Super Bowl losers, and now Brady’s better half, Gisele Bundchen, might have her ad for an intimate apparel company banned in Brazil.  Sure, she probably got paid already, but it doesn’t auger well for repeat business.

Naturally, feminists are to blame.

Brazil’s Ministry for Women called Wednesday for the suspension of a television ad featuring lingerie-clad supermodel Gisele Bundchen, saying it reinforces the stereotype of women as sex objects. (source.)

On one hand, the Latin world is very machismo and I can see why this would be a concern in some areas.  To the extent women want to work, they shouldn’t have to face constant degradation and criticism.  Although, if they don’t  have to work, that seems like a pretty sweet deal.  I’m still looking for my sugar momma so I can strike out “Have Career” from my calendar for the next 40 years and replace it with something like “do Ketamine and watch Dr. Who.”

On the other hand, it’s an ad, and sex sells.  Sex especially sells lingerie, which exists to encourage sex in the first place.  You can’t really divorce sex from this product unless you have Ben Stein deliver some kind of monologue about the undergarments’ erotic qualities.

The TV ads [depicting Bundchen in lingerie and heels as she explains to her husband that she wrecked the car, exceeded her credit limit, etc.] send a message “that sensuality can melt any man” and “encourages Brazilian women to use their charms… to minimize the reactions of their husbands,” the ministry said. (source.)

Point of information: This is true.  Does anyone seriously dispute this?  One can still be “equal” and play to their strengths.  in fact, this is the kind of approach we should be encouraging with women, as opposed to training them to rationalize every error to be someone else’s fault, and to charge into any disagreement as if it’s a contentious arbitration.  Know what the latter approach has made women?  Miserable.  Baking cookies for your husband before telling him you wrecked his credit is not that bad of a tactic for all involved.  As they say, if you’ve got it, flaunt it.

The Ministry for Women’s argument rests upon flawed logic, assuming that women must choose between “independence”  (which ironically entails working for someone else most of the time) or supplicating their men by acting sweet and feminine.  Both can coexist, and Brazil’s women will not have to choose between having long hair and soft voices or possessing any degree of self-sufficiency.

Economically, the suppression of beauty benefits those who lack it (whether absolutely or relatively).  It’s why middle-aged women hate their husbands watching porn, and obese girls chide skinny ones for looking “unhealthy,” telling their waif peers that they “should really eat a cheeseburger” — or four.  I can understand the desire to maximize one’s market position, especially when it’s held by only the most tenuous grasp.  But don’t gussy it up as being “for women’s own good.”  Just like every other charlatan who screams that some sweeping restriction of freedom is “for the children!” – or just “terrorism!” – the people pushing this agenda are full of crap, and nobody with firing brain synapsis should listen to them.


Well wrap me up in semen and diamonds and lick me

June 1, 2011

by Tatiana von Tauber

Supermodel Naomi Campbell is insulted at being compared to Cadbury’s Dairy Milk Bliss chocolate as in this ad. She’s considering legal action at its racist tone.

If Cadbury’s Dairy Milk Bliss were white chocolate and compared to a white supermodel, I wonder if racism would come into the interpretation zone. Sexism might as who doesn’t love to lick chocolate and we could interpret that white chocolate subtly refers to creamy semen giving a whole new meaning to “milk bliss”. Interpretations are something interesting aren’t they?


9th Circuit: Consumer Sophistication is an important determinant for AdWord bidding cases

March 10, 2011

by Jason Fischer

For some time now, it has been a legal gray area whether bidding on a competitor’s trademarks as Google AdWords constituted infringement.  Google has taken a neutral stance on the matter, only removing ads that actually make use of the mark in ad copy and directing unhappy trademark owners to take their dispute to a court of law for resolution.  Finally, some of these cases are bubbling up through the federal court system and providing some precedent and guidance.

The latest such decision comes out of the 9th Circuit and involves two software developers who sell licenses to high-end task management applications for businesses.  Software Company A decided that it would be a good marketing strategy to bid on Software Company B’s trademark as an AdWord with Google and Bing, providing a “Sponsored Link” to Company A’s product for users who entered the trademark as a search term.  Obviously, Company B was none too happy about the practice and sued Company A claiming trademark infringement and successfully obtained a preliminary injunction.

On appeal, Company A argued that presenting a “Sponsored Link” for its product to potential purchasers who searched for Company B’s product name would not cause any consumer confusion.  As you can imagine, a link to Company B’s product would appear in the very same search results, alongside the link to Company A’s product, but Company A contended that potential purchasers were savvy enough that no one would be confused or tricked into thinking that Company A’s product was sold by Company B, or vice versa.

In agreeing with Company A’s position, the appeals court noted that licenses for the software at issue were sold for up to $10,000 and more — indicating that the searching parties were more likely to be careful in their purchasing decision, doing research which would eliminate or significantly reduce the likelihood of confusion.  The court also noted that the type of purchasers for these software products are more likely to be expert users of the Internet, who understand how keyword marketing works with search engines, which would also reduce the likelihood of confusion.

You can read the Judge Wardlaw’s full opinion here, if you’re interested in a more thorough discussion.

This decision, in IMHO, serves as a helpful reminder that there are more than a few factors that attorneys either ignore or tend to dismiss in determining likelihood of confusion, and as a result end up trying to enforce their clients’ marks beyond the rights actually afforded.  Comparative advertising is not only legal in the U.S., but preferred, and use of your competitors trademark is not always an actionable event.


The New Dave Thomas

August 20, 2010

wXHZt

H/T The Kone


Hulk Hogan Brings Questionable Right of Publicity Suit

June 2, 2010

Is Boulder a doppelgänger for Hogan?

Hulk Hogan a/k/a Terry Bollea thinks that a character in a Cocoa Pebbles commercial (shown below) is too similar to him — and that it misappropriates his image or likeness for a commercial purpose. If that is the case, it is a no-no under Fla. Stat. § 540.08, which protects Floridians from unlawful commercial appropriation of their name or likeness.

In Hulk’s corner, the character in the commercial has long blonde hair, a mustache, and is called either “Hulk Boulder” or “Bulk Boulder.” I can’t really tell. In Post’s corner, it seems that the wrestler in the ad has a lot less forhead, a very different mustache, no headband, no Oakleys, and doesn’t seem to use the Hulkster’s gravely voice.

This suit seems like a stretch to me. (complaint here)

H/T: Nadia


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