Federal Circuit’s COCKSUCKER Decision Sucks

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!

Sunshine is the best disinfectant – the Steubenville Rape Case

The mainstream media has noticed that something is amiss in Steubenville, Ohio. (Rape Case Unfolds on Web and Splits City).

And Jezebel gives credit where it is due — to a blogger who refused to let the story die. (We Wouldn’t Know About the Steubenville Rape Case If It Wasn’t for the Blogger Who ‘Complicated’ Things).

I won’t comment beyond my earlier post on the case, because I have been brought in to help defend the blogger.

Deadspin Weighs in on Raanan Katz Suit

FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!!!!!

As some of you remember, Raanan Katz sued Google and others for copyright infringement this summer over a Blogger user’s publication of an “unflattering” photograph of him.  Today, popular sports blog Deadspin has the story.

Beyond the copyright suit, the Deadspin piece goes on to discuss a Florida trial court’s order in separate, concurrent litigation that Katz has brought against the same defendant as his copyright suit. 

This is a very complicated case. You know a lot of ins, a lot of outs, a lot of what-have-yous, but in particular, Deadspin addresses a decision by Florida’s 11th Judicial Circuit enjoining the defendant from writing further about Katz, since what the Defendant has written thus far is “arguably defamatory.” (source.)

As Randazza is counsel of record in the case, we provide no comment beyond a link to the appellate brief in the case.

It’s a Beautiful Thing, the Destruction of Words.

First Amendment BAMF The Foundation for Individual Rights in Education (“FIRE”) defends individual rights at American Colleges and Universities from the barrage of attacks on free speech and free expression. Every month, FIRE features an institution of higher learning that should be ashamed of itself for enacting a speech code that is, at best, terrible. This month’s honoree is the University of North Dakota (“UND”) for its delightfully well-written policy that defines harassment as:

“[U]nacceptable behavior, which can range from violence and bullying to more subtle behavior such as ignoring an individual at work or study. It subjects an individual or a group to unwelcome attention, intimidation, humiliation, ridicule, offense or loss of privacy. It is unwanted by the recipient and continues after an objection is made.”

Source.

Universities have long been thought to be the last gleaming hope of free thought and expression. It is also generally accepted that college campuses are bastions of left leaning philosophies that champion speech and expression. Imagine the shock and chagrin, then, when one discovers that UND isn’t the only member of the “liberal” American higher education system that quite possibly poses more of a threat to First Amendment rights than the government. But before you conservatives and libertarians start squealing and pointing the shame finger at the nearest hippie, sit down, shut up, and read “Unlearning Liberty: Campus Censorship and the End of American Debate”, by First Amendment super BAMF and FIRE president Greg Lukianoff.

In his book, Lukianoff gives a very real and very scary glimpse into contemporary American academia. No longer a shining beacon of differing viewpoints and the relentless pursuit of intellectual honesty, the typical American university is a quagmire of self-serving administrative officials, apathetic faculty, and a woefully ignorant student body. Lukianoff deftly sheds light on the evolution of censorship policies that have been unilaterally enacted by weak-minded bureaucrats who want to stamp out criticism and dissent. Policies that are enforced without a glimmer of due process for the offender and without so much as a peep from the student body. Policies that may be in response to legislation at both the state and Federal level.

As someone once said, “The philosophy of the school room in one generation will be the philosophy of government in the next”. If so, we’re in for a world of hurt. Unlearning Liberty is a must-read for every First Amendment defender out there. It will scare you, piss you off, and maybe even make you cry, but hopefully it will also inspire you to wake up, stand up, and speak up.

Steubenville, Ohio: Gang Rape + SLAPP Suit

SLAPP suits are never pretty.

This one is particularly troubling.

A couple of members of the Steubenville, Ohio Big Red football team were accused of kidnapping and raping a 16 year old girl at a party. (source, source)

A blogger, Alexandria Goddard, wrote about the incident. Naturally, she was outraged. She wrote another post, in which she also provided a copy of a photo, allegedly taken (or merely transmitted) by a Cody Saltsman.

The photo and related tweets are available here. Tweets like “whore status” and “I have no sympathy for whores.”

Saltsman has not been charged with a crime. He denies, under oath, being at the party at all.

Nevetheless, the comments sections in Goddard’s blog lit up with negative opinions of the young man.

So his parents sued for defamation. (source)

Cody Saltsman and his parents, James and Johna Saltsman, filed the lawsuit through their attorney, Shawn Blake, seeking an injunction to force Alexandria Goddard of Columbus, who runs the blog site prinniefied.com, to remove alleged false and defamatory statements from the blog site. The Saltsmans also are seeking monetary damages in excess of $25,000. (source)

The defamation suit names Goddard and 15 defendants, known only by their screen names and IP addresses. (UPDATE: Amended complaint here)

On Friday, the judge gave the plaintiffs the right to issue subpoenas to ascertain the identities of the 15 pseudonymous defendants. (source)

Jefferson County Common Pleas Judge David Henderson Thursday said attorney Shawn Blake can issue the subpoenas but the people whom Blake is trying to identify have the right to file their own motion to quash the subpoena.
…

The judge said Goddard, if she knows the identity of the annonymous people, should notify those people of the pending discovery and tell them they have 14 days to file a motion to stop the subpoena and the information being released that will make their identity known. The judge said the Internet providers who will be subpoenaed also should notify their customers of the pending discovery. (source)

For the most part, the defamation claims are off the mark. In the initial complaint, Goddard had a clean Section 230 defense. Since then, the plaintiff filed an amended complaint, which at least tries to plead around Section 230.

As far as the comments go, the majority of them appear to be non-actionable on their face. Review the amended complaint. Some of them, without knowing all the facts, might be capable of a defamatory meaning. For example, some of them accuse the kid of being the “ringleader.” That might be an issue, depending on the actual provable facts. On the other hand, some of them are downright silly to include in a defamation complaint.

Regardless, it seems like Saltsman will have some difficulty in this case (after all, the photo above seems to confirm some of the negative comments). I suppose he may have merely come into possession of the photo from someone who was there, rather than taking it himself, but it seems like a fair comment to presume he was there if he was tweeting and distributing the photo. I don’t see how he can deny that he was joking about it with his buddies on Twitter (unless all of the tweets and photos are part of an elaborate fabrication). I’m really not sure what else you could say about someone to damage their reputation further after you have those facts established.

Sickcrimes blog sums up the allegations for us here:

A girl was raped by at least two football players in Steubenville, Ohio and the act was photographed and/or filmed by several other teens at the scene of the crime. Did they try and stop the two fucknuts? Hell, no. Did they report the heinous act? What do you think? What they DID do was post about it on Facebook, Twitter and Instagram.

I am really not sure what you can say about a kid that would be more damning than that. Yes, some of the statements might be false statements of fact. But, even if they are, Mr. Saltsman comes to the case with a reputation already colored by his actions after-the-fact. Is it worse to say he was the “mastermind” of the rape? Yes. Is it worse to say that he “orchestrated” the rape? Yes. But, it is sort of like The Dude’s car in The Big Lebowski. When he finds it in the impound lot, it has been crashed, and a vagrant used it as a toilet. Is it really all that much worse when it finally gets blown up?

If the photo above is authentic, and not a complete fabrication, then this guy might have bigger problems than whether someone said something mean about him on the Internet. He certainly has some pretty foolish people advising him. Had he never filed this lawsuit, he would have gone off to college, everyone would have forgotten about it, and that would have been the end of it.

Now, at the very least, he breathed all kinds of new life into the story. At worst, the defendants might have to prove the truth of the matters asserted in their statements. If they can’t do so, and lets just say (for the sake of argument) that Saltsman wins the defamation suit, then what? He’s still the guy who kept photographic momentos of a gang rape and who joked about it on Twitter.

Press Prosecutions Relating to Occupy Movement Live On

By J. DeVoy

Around this time last year, large bands of police descended upon “Occupy” encampments from coast to coast, seeking to decamp the rebelling hipsters once and for all.  What you may not know, though, is that the Los Angeles Police Department radically changed their press policy immediately before its efforts to disperse the movement: only members of the “official” press pool were allowed to report on the raid. (Source)  Rogue journalists, as defined by the LAPD, would be arrested on sight.

Surely there was some kind of previous, quiet announcement of how to become a member of the official press pool so that bloggers, citizen journalists, and other non-traditional news sources wouldn’t (theoretically) be prejudiced, right? Apparently not:

[T]he day before [the raid], the LAPD had selected a handful of local news organizations and given them permission to report on the action from an embedded position. If you weren’t on the list, you weren’t a journalist. It was that simple.

NSFWCorp’s article (which is, by most standards, safe for work) draws the important parallel between the modern police state and prior repressive regimes around the globe.  Political activists are detained with painful zipcord handcuffs, held for hours and even days, and even forced to sit in their own excrement.  While Levine is not unbiased, his account requires little imagination to believe.

A year later, Levine is still being prosecuted for his crimes as not being a member of the official press pool.  While California and Los Angeles fiscally burn, the LAPD seem content to play their fiddle for one man possessing the temerity to document their actions.

Steve Swander

Steve Swander, R.I.S.

We lower the Satyricon’s flag to half mast today in honor of Steve Swander, the Immediate Past President of the First Amendment Lawyers’ Association. Mesothelioma took his life at 3:45 AM today.

His practice was based in Fort Worth, Texas, where the local weekly described him as an expert at fighting authorities in the State of Texas over “morals laws.” (source) Swander was a much-respected soldier in the ongoing battle to preserve civil liberties and freedom of expression. (source) And, he did so in Texas – hostile territory for someone on his side of the fight. (source)

The Dallas Observer wrote of him:

Swander is a professorial type who speaks carefully and almost winces when he comes to the more colorful details of what obviously is a specialty, the relationship between body parts and free speech. He spiels off the history of clear latex pasties: the court decision that caused the clubs to switch to non-latex pasties in order to change their status to Class A dance halls and escape location limits, followed by a new ordinance in 1997 focusing on the breast beneath the nipple, struck down by the court, thereby allowing clubs to operate with non-flesh-colored pasties as dance halls rather than sexually oriented businesses. (source)

That might not be a typical selection for a eulogy, but Swander wasn’t a typical guy. I see that quote and a big smile breaks out across my face, as I remember Steve.

And, it isn’t just me… my inbox is bursting with expressions of respect and sorrow from fellow members of the First Amendment Bar. If you knew Steve, this would be of no surprise to you. If you didn’t know Steve, and you saw the list of names in the “from” lines on those emails, you would think that a Supreme Court justice had just passed away. This was a bona-fide First Amendment Bad Ass.

Normally, I wouldn’t share FALA emails with the rest of the world, but I think I can make a limited exception in this case.

The current president of the organization, Daniel Aaronson, wrote about observing Steve as he prepared to take over the FALA helm.

I saw a man who conducted himself with a quiet calm grace that made all respect him. I will truly miss Steve and on behalf of all of FALA I will take the liberty of saying that we will all miss him.

Thank you Steve for your dedication to the First Amendment, to our organization and for just being you. You will be remembered.

The usually irreverent Paul Cambria, provided this particularly somber expression of respect:

When a person dies there is a set of numbers on the left of their tombstone representing the day their life began then a dash and a set of numbers on the right representing the day their life ended, but the dash represents their life. In Steve’s case that dash was filled with good things, good friends and good accomplishments great guy will be missed by all of us.

In honor of our fallen friend and colleague, I lower the flag to half mast and award Mr. Swander a posthumous First Amendment Bad Ass award.

If there is an afterlife, I am certain that Steve has already gotten to work there making sure that the place is more fun for the rest of us when we arrive. When you get there, if the angels are bare-breasted, and not wearing bikini tops, you can probably thank Steve.

Rest in slack, Steve.

Court rules “Dirtiest Hotels” list not defamatory

By Marc J. Randazza

The U.S. District Court of the Eastern District of Tennessee at Knoxville recently granted a motion to dismiss after it determined that a plaintiff hotel failed to successfully state a claim of defamation against defendant hotel review site TripAdvisor.

In Kenneth M. Seaton, d/b/a Grand Resort Hotel and Convention Ctr. v. TripAdvisor, LLC, the Grand Resort sued after it was ranked No. 1 of 10 on TripAdvisor’s “2011 Dirtiest Hotels” list. According to the Order, one user claimed that the hotel’s bathtub had “dirt at least ½ inch thick” and was filled with dark hair.  The photograph that accompanied the listing was a photograph of a ripped bedspread.  The complaint levied that TripAdvisor was liable for “maliciously and wrongfully contriving, designing and intending to cause respected customers to lose confidence in the Plaintiff and to cause the public to cease and refrain from doing business with the Plaintiff and to cause great injury and irreparable damage to and to destroy Plaintiffs business and reputation by false and misleading means.” It also claimed that TripAdvisor “singled out” the hotel and defamed it with “unsubstantiated rumors and grossly distorted ratings.”  The plaintiff asked for $5 million in compensatory damages and $5 million in punitive damages.

The hotel furthered argued that TripAdvisor should be liable because the list was presented as “factual, verifiable information,” rather than opinion or hyperbole, stating that a ruling in favor of TripAdvisor would make it “more dangerous than ever in a ‘lawless no-man’s land’ on the Internet.”

The Court disagreed with the hotel, contending that a reasonable person would be able to tell the difference between an opinion and factual information, and that the list was an “unverifiable rhetorical hyperbole.”  As an example, the Court stated that any person who could not distinguish between the subjective opinion “it is hot” and the objective fact “it is one-hundred degrees” is not a reasonable person.  Much in the same way, TripAdvisor’s list is hyperbole.

TripAdvisor’s list is no different than other lists that surround us, the Court said—from law schools, restaurants, judges and hospitals.  Readers may or may not consider those rankings in making a decision, but a reasonable person would see the rankings as online users’ opinions, and the ranking itself is subjective and therefore not defamatory.

Read the full order here.

From engagement photo to political attack ad…

In May of 2010, Thomas Privitere and Brian Edwards, a gay couple, hired a photographer to take pictures of the two men in a New York City park.  Their favorite photograph displayed the two men kissing and holding hands with the Brooklyn Bridge in the background.  The couple liked the picture so much that they posted it on the Internet as their engagement photo.

Cut to Spring of 2011:  Public Advocate of the United States, a conservative nonprofit, needed a photograph for a political flyer to take a Republican State Senator from Colorado to task for voting to approve same-sex civil unions.  Public Advocate ran across Privitere’s and Edwards’ engagement photograph on the Internet.  Presumably, the nonprofit believed Coloradans would find an image of two men innocently and chastely kissing inherently gross, and decided to use the photo for its attack ad.  Before doing so, Public Advocate doctored the image – removing the Brooklyn Bridge and replacing it with imagery reminiscent of a Colorado mountaintop.

Unsurprisingly, Privitere, Edwards, and their photographer were not flattered when they discovered that the couple’s engagement photo had been used by a right wing “think tank” to appeal to Colorado voters’ homophobia.  Earlier this month, the three filed suit against Public Advocate in federal court for copyright infringement on the photograph and misappropriation of the couple’s likeness.

Public Advocate’s use of the engagement photo should certainly be morally reprehensible to any reasonably tolerant person, and the photographer appears to have a very strong copyright infringement claim against the nonprofit.  Public Advocate has no real fair use defense here.  The political mailer was not meant to criticize or parody the original photograph.  Instead, it was meant to denigrate a politician’s views on same sex marriage or civil unions.

However, were the couple’s rights of publicity violated?  That question is a much harder one and could likely swing either way should this case proceed to trial. Rights of publicity laws are generally intended to protect persons from the unauthorized commercial use of their likenesses.  For example, Nevada’s rights of publicity laws define “commercial use” as being “for the purposes of advertising, selling, or soliciting the purchase of any product, merchandise, goods, or service.”

Here, Public Advocate has a strong argument that the flyers that it produced were purely political speech protected by the First Amendment.  The organization was not attempting to use the photograph for any commonly recognized “commercial” purpose.  Rather, it was using the image to advance its objection to homosexual civil union.

On the other hand, Public Advocate’s own website proclaims that some of its primary goals are to provide “strong and vocal opposition” to “[s]ame sex marriage and the furtherance of so-called ‘Gay Rights’” and to decry the “mainstream media’s promotion and glorification of . . . homosexuality.”  (Public Advocate is the organization that infamously compared same-sex unions to state-sanctioned bestiality, and claimed that allowing gay men to serve in the Boy Scouts was akin to “being an accessory to the rape of hundreds of boys.”)  Its website prominently asks social conservatives for contributions so that it might continue spreading its message to the masses.  If a court were to view the political mailer containing the doctored photograph as, in part, a solicitation for increased funding, the requisite “commercial use” may very well be present.

 

 

Happy Banned Books Week!

Read this today

In 1982, the Supreme Court found that students’ First Amendment rights were violated when the Island Trees School District removed Slaughterhouse Five and eight other books from library shelves. This served as the inspiration for a week-long celebration of the freedom to read, and thirty years later, Banned Books Week is still going strong. Source.

Sadly, book banning is not something that has been relegated to the dark days of an intolerant past. There are plenty of pearl clutchers and busybodies out there who work diligently to make sure that theirs is the only viewpoint that matters. You know…to protect the chiiiilllllldren. The group seeking to ban books is overwhelmingly parents (shock) and sexual activity is the most popular reason. Just so you know, violence came in at fifth place behind bad language and “other”. Source.

So please take some time this week to celebrate the written word and give a virtual middle finger (or literal if the opportunity presents itself) to those who think a book on a shelf can hurt anyone or anything.

Awfully Convenient…

Nakoula Basseley Nakoula, the director of the “Innocence of Muslims” movie, which has been blamed for setting off riots and murders in Islamic countries, has (conveniently?) been arrested for violating the terms of his probation. Among the terms of his probation: He was not allowed to se the Internet or a computer, which I presume he had to do in order to create and distribute his film. (source). From the sounds of it, the guy isn’t the most savory character in the world.

So yeah, it seems to me that he probably violated his probation.

Greg Pollowitz at The National Review wrote:

Listen, if you’re a two-time felon who is out on parole and told not to use an alias in business dealings or use the Internet and then you lie to reporters at the AP and WSJ using your alias and admitting you used the Internet, then what do you think is going to happen? (source)

Which is the only reason that he is now being held without bail, right? (source). Right?

It doesn’t have the slightest bit to do with the content of his film or the way that a bunch of idiots, brainwashed with superstition, reacted to it.

Let us presume that my cynicism is misplaced. Let us presume that it has nothing to do with that. It still sends the wrong message — that when the government does not like your speech, it can find a way to get you, First Amendment or no First Amendment.

Nikki Finke and Dominic Patten, at Deadline Hollywood saw it this way:

His arrest today is an apparent U.S. attempt to appease worldwide Muslims and their clerics and governments demanding for the YouTube video to be removed and its filmmaker punished. In an address on Tuesday condemning the content of the video, President Obama explained, “The strongest weapon against hateful speech is not repression, it is more speech.” This legal action is a way to preserve America’s  First Amendment principles but at the same time find a roundabout but legitimate way to punish Bakoula for the crudely made film that portrays the Muhammad as a religious fraud, womanizer and pedophile. (source)

I’m not saying that Nakoula should get a free pass for his probation violations. I am not saying that Finke and Patten are correct. Pollowitz has a hell of a good point. Nakoula couldn’t have made his probation violations any more public, and thus prosecutors had to do something.

Nevertheless, if Muslims are allowed to riot and kill people because they are offended at how their imaginary friend gets portrayed, I’m allowed to be offended when the government sends the message (on purpose or not) that “if you publish a film that we don’t like, we’ll find a way to put you in jail.”

A Pox on Both Your Houses – Suppressing Speech is Not the Same as Expressing Speech

The New York City Metropolitan Transit Authority recently came under fire for allowing advertisements on the New York subways that say, “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.”

Goebbels would be proud

The MTA initially refused to run the ad, claiming that it was “demeaning.” However, in July a Federal Judge schooled the MTA on the meaning of the First Amendment. (Order) The MTA, a government authority, does not get to pick and chose which messages it wants to accept.

With the MTA having no choice in the matter, Pamela Geller was free to purchase $6,000 worth of subway ads for a month. Naturally, I have some problems with the ad. First off, I dispute any notion that the Israelis are any more “civilized” than the Muslims. If I had my choice, I would give both groups 30 days to vacate Israel/Palestine and then saturate the land with “dirty bombs” so that nobody could live there for 10,000 years. Maybe after the two groups of assholes have that much time to cool off, they’ll figure out how to share.

The ad is certainly racist, and that’s the point. Geller is no better than Fred Phelps. Nevertheless, the cure for bad speech is more speech. Geller and Phelps will, hopefully, one day inhabit the same dungeon in hell. But, until then, we must pay the cost of living in a free society by tolerating both of their speech.

And that’s where we run into some problems.

Mona Eltahawy, an Arab-American journalist, has reasonable disagreements with an ad which calls her people “savages.” The ad is bigoted. The ad is despicable. Pamela Geller deserves to bo have a cactus shoved up her ass followed by a hive of African bees followed by another cactus. Her message is disgusting and, at the risk of invoking Godwin’s law, it smacks to me of 1940s era Nazi propaganda against the Jews.

And how does this differ from Geller’s ad?
“All propaganda has to be popular and has to adapt its spiritual level to the perception of the least intelligent of those towards whom it intends to direct itself.”-Adolf Hitler

Ms. Eltahawy decided to protest the ad by spray-painting it. And then, a woman by the name of Pamela Hall, who apparently works for Pamela Geller, decided to stand in between the ad and Ms. Eltahawy’s spray paint. At that point, I would like to say that hilarity ensued, but more to the point, stupidity ensued. Eltahawy expresses her stupidity by claiming that spray painting over the ad was her way of expressing her First Amendment rights. Ms. Hall then seemed to think it was perfectly okay to escalate the situation into a physical altercation. Finally, the police came and arrested Ms. Eltahawy for criminal mischief. They did not arrest Ms. Hall for physically assaulting Ms. Eltahawy. Let’s face it, this is happening in New York City and in a fight between an Arab and an Israel supporter, any judgment calls are going to go against the Arab – with or without instant replay.

It seems that the Arab-Israeli conflict can count among its casualties reason and rationality when it comes to expressing free speech theories. This story reminds me of eleven students arrested in February of 2010. In that incident, the Israeli ambassador to the United States, Michael Oren, was giving a speech at UC Irvine and some Palestinian students decided to express themselves at the same time. Outrage ensued on both sides of the divide, especially when the Palestinian students were dragged away and criminally charged for their conduct. They, like Ms. Eltahawy, claimed that they were simply exercising their First Amendment rights. I did find them being criminally charged to be awfully heavy handed and I’m quite certain, had the tables been reversed and a Palestinian speaker was being shouted down by Israeli students, nobody would have been prosecuted. Nevertheless, while I may empathize with the Palestinian’s view on their home being colonized, and while I believe that Ms. Eltahawy’s point about Ms. Geller’s ad is well-taken, I do not believe that shouting down your adversary or covering up their message is a defensible act. The First Amendment does not protect your efforts to silence a fellow citizen’s speech.

This happens frequently when one party does not like the other party’s message: stacks of newspapers go missing, speakers get shouted down, and posters get spray-painted. However, if anybody thinks that is the First Amendment in action, they need a remedial class in the subject.

I don’t believe that, strictly speaking, that vandalism of the poster should be completely prohibited. In San Francisco, some people were defacing the posters with bumper stickers that countered the message, while leaving the message intact. This still might be considered vandalism, but as a free speech issue, I find it far less objectionable. Similarly, had the Palestinian students simply stood up during the Israeli FM’s presentation, holding signs or wearing t-shirts critical of the Israeli government, I could find little to object to, even if it was slightly disruptive. I find it inexcusable when one side of a debate thinks that shouting the other down is the answer to the speech that they do not like.

The First Amendment it is not only there for the speaker — it is there for the listener too. I want a robust First Amendment not just because I want the ability to say anything I want to say, but also because I want to hear what everybody else has to say. I want to hear it even if it’s stupid. I want to hear it even if I find it objectionable. My beliefs are strong enough that they can stand firmly in opposition to those that I may find abhorrent. I don’t need to shut the other guy up by playing dirty pool. I don’t want to do that. I do want to shut the other guy up, but I want to shut him up by destroying his arguments. I want to shut him by showing everyone how stupid he is. I want to shut up Ms. Geller. But I want to shut her up by visiting the market place of ideas and utterly rejecting anything that she may have to sell. I want to convince other shoppers in the market place to walk away, saying, “Try selling batshit crazy bigotry some place else; we’re all stocked up here.” I would like to see Ms. Geller’s views wiped from the face of the earth. But they must be wiped from the face of the earth with reason and with wide-open and robust debate, not with a can of spray paint in some fool’s hand.

Arizona Supreme Court determines tattoos are protected by the First Amendment

The Supreme Court of Arizona recently held that obtaining a tattoo is pure speech and is therefore subject to the highest protection by the First Amendment.

The plaintiffs in Coleman v. City of Mesa (Case No. CV-11-0351), requested a Council Use Permit (CUP) from Mesa, Arizona, to open a tattoo parlor.  The city zoning commission recommended to the city council that the CUP be approved; however, the city council voted to deny the permit after several speakers came to the meeting and expressed support or opposition to the parlor.  The plaintiffs filed suit against Mesa, claiming that the CUP was denied on the basis that the business would be operated as a tattoo parlor, in violation of the First Amendment.  The Trial Court granted Mesa’s 12(b)(6) motion to dismiss, concluding that the denial of the CUP was a reasonable and rational regulation of land use.  The appellate court reversed, holding that obtaining a tattoo was pure speech, subject to the highest protection by the First Amendment.

Defendant Mesa argued that the City Council denied the CUP by applying general law, which incidentally affects speech-related activities.  However, while the law may apply to non-speech related issues, it is not insulated from constitutional ramifications if applied to protected speech.

As a case of first impression, the court attempted to determine whether a tattoo is a constitutionally protected expression of speech.  Courts are divided on the issue as to whether a tattoo is considered pure speech or if it conduct with and expressive component.  If a tattoo is considered pure speech, then it is protected, and can only be regulated through reasonable time, place, and manner restrictions.  The Supreme Court of Arizona looked to the Ninth Circuit’s opinion in Anderson v. City of Hermosa Beach, 621 F. 3d 1051 (9th Cir. 2010) for guidance on the issue. In Anderson, the Ninth Circuit determined that a tattoo is pure speech and not merely conduct.

Other courts, however, have reasoned that a tattoo should be considered conduct.  The Northern District of Illinois concluded the act of getting a tattoo is “one step removed from actual expressive conduct. Hold Fast Tattoo, LLC v. City of North Chicago, 580 F. Supp. 2d 656, 660 (N.D. Ill. 2008).  Still others have determined that the process of getting a tattoo simply is not protected. Yurkew v. Sinclair, 495 F. Supp. 1248, 1253-55 (D. Minn. 1980); State ex rel Medical Licensing Bd. v. Brady, 492 N.E.2d 34, 39 (Ind. Ct. App. 1986);  State v. White, 560 S.E.2d 420, 422 (S.C. 2002).

The Arizona Court agreed with Anderson, which stated that the only difference between a tattoo and other protected forms of art is that the work is “engrafted onto a person’s skin rather than drawn on paper.” 621 F.3d at 1060.  Additionally, tattoos are not only the work of the artist, but are the self-expression of the person displaying the tattoo’s permanent image.  The fact that the tattoo artist uses standard or iconic images does not take away from the fact that the act is protected speech.

While there can be some regulation of tattooing involving reasonable time, place, and manner restrictions, (for example, taxes, health regulations, and nuisance ordinances), the reason for the regulation cannot be purely because the business is a tattoo parlor.  Therefore, the Mesa City Council might have erred in denying the CUP for reasons other than reasonable restrictions.

The Supreme Court of Arizona’s full opinion is available here.

The Copyrightability of Porn

Back in April, I wrote an article “Challenging The Copyrightability Of Porn” (html version – digital mag version)

This was to confront a growing chorus of voices questioning whether porn can be copyrighted. You likely don’t need to read my article to know where I come down on it.

Over the past week, The First Amendment Lawyers’ Association has honored me by permitting me to file amicus briefs on its behalf in Colorado and Massachusetts, confronting this issue in the courts. (The MA one is a little better refined)

New Jersey Supreme Court rules HOA’s political sign ban unconstitutional

The New Jersey Supreme Court recently struck down a homeowners association rule that prohibited the posting of political signs in a homeowner’s unit. (Full text here).  The court reasoned that the HOA’s complete ban of political signage violated the free speech clause of the New Jersey Constitution, which “affirmatively guarantees the right of free speech to all citizens.”

Defendant Wasim Khan lives in and owns a townhome in a common interest community managed by Mazadabrook Commons HOA. Kahn ran for a position on the local town council and posted two signs on his house advertising his candidacy: one in his window and the other on the inside of his door.  Mazdabrook informed Khan that his display of these signs was in violation of the CC&R’s, ordered him to remove them, and sent him a fine for the violation.  Mazdabrook’s regulations prohibited all signs except “For Sale” signs on residential property.

Upon move in, Mazdabrook homeowners receive a number of different documents.  The documents submitted for court review were the Public Offering Statement (POS), Declaration of Covenants and Restrictions (Declaration), and the Association’s Rules and Regulations.  The POS expressly prohibits the erection of signs, except for one “For Sale” or “For Rent” signs.  The Declaration and Rules and Regulations, however, do not prohibit the posting of all signs. Instead, the documents state that the board must give prior written approval prior to the sign’s placement.

New Jersey’s Constitution provides broader protection than the First Amendment of the U.S. Constitution, and the court stated that in order to trigger the protections of a state law, interpreting a broader constitutional right does not require a state action.  Therefore, the court applied New Jersey’s free speech protections, not the U.S. Constitution’s, to the issue.  The court stated that political speech lies “at the core” of New Jersey’s free speech protections, and therefore receives even greater scrutiny.

In analyzing whether an HOA’s restriction violates free speech rights, the New Jersey court used a three-prong test laid out in State v. Schmid, 84 N.J. 535, 563 (1980), appeal dismissed sub nom, Princeton Univ. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L. ed. 2d 855 (1982).  When applied in the homeowners association setting, the test analyzes: 1) whether the primary use of the property is residential, 2) whether the association had not invited the public to use the property, and 3) whether fairness considerations weighed in favor of the restriction and against the defendant’s expressional activity.  However, the court stated that the first two factors do not weigh as heavily in this case because Khan was not a mere visitor, but an owner of the property.  Therefore, the court considered the third prong more heavily in its analysis.

The court found that an almost complete ban on residential signs, which includes political signs, is not a “minor restriction” to Khan.  Rather, it restricts his most basic rights as a political candidate and of the political process itself.  Conversely, the interference with the Association’s property is minimal—the signs were located in Khan’s window and door, where people passing by could view them and make their own analyses. While the HOA has the right to adopt reasonable time, place, and manner restrictions on the signs, the court said, it cannot impose a total ban on them.

Furthermore, the court determined that Khan did not waive his constitutional right to free speech because he purchased the home with full knowledge of the restrictions.  Because the alleged waiver of Khan’s free speech rights was not clear, he did not waive his rights by accepting the terms in the documents.  Instead, he was asked, in three different ways, to waive the right to post signs without board approval, but was not expressly told the rules that would govern the process of approval.  Therefore, this was not a knowing waiver of constitutional rights.

Recently, we analyzed a similar rule contained in HOA documents for a Nevada HOA.  Similar to Mazdabrook, the HOA documents also contained conflicting language about political signage, with the controlling rules banning all signs but “For Sale” and “For Rent” signs.  Another document stated that in order to post any other kind of sign, the homeowner would first need to get permission from the HOA’s design committee.

No caselaw on this particular issue exists in Nevada.  However, Nevada Revised Statutes 116.325 states that common interest communities may not prohibit unit occupants from displaying political signs, but can place reasonable restrictions on things such as size:

Right of units’ owners to exhibit political signs in certain areas; conditions and limitations on exercise of right.

1.  The executive board shall not and the governing documents must not prohibit a unit’s owner or an occupant of a unit from exhibiting one or more political signs within such physical portion of the common-interest community as that owner or occupant has a right to occupy and use exclusively, subject to the following conditions:

(a) All political signs exhibited must not be larger than 24 inches by 36 inches.

(b) If the unit is occupied by a tenant, the unit’s owner may not exhibit any political sign unless the tenant consents, in writing, to the exhibition of the political sign.

(c) All political signs exhibited are subject to any applicable provisions of law governing the posting of political signs.

 (d) A unit’s owner or an occupant of a unit may exhibit as many political signs as desired, but may not exhibit more than one political sign for each candidate, political party or ballot question.

2.  The provisions of this section establish the minimum rights of a unit’s owner or an occupant of a unit to exhibit political signs. The provisions of this section do not preempt any provisions of the governing documents that provide greater rights and do not require the governing documents or the executive board to impose any restrictions on the exhibition of political signs other than those established by other provisions of law.

3.  As used in this section, “political sign” means a sign that expresses support for or opposition to a candidate, political party or ballot question in any federal, state or local election or any election of an association.

Yet even in the absence of NRS 116.325, prior restraints on speech are generally considered unconstitutional, and such protections could be extended to homeowners.  The New Jersey Supreme Court did not need to address the state actor issue of HOAs because it relied entirely on the state constitution in its reasoning.  Obviously, homeowners associations are not considered to be state actors, and are generally not bound by Constitutional considerations.  However, as soon as a homeowners association attempts to enforce its CC&Rs, a state action is triggered, and the First Amendment will kick in.

The seminal case on the matter of HOAs infringing on homeowners’ fundamental rights is Shelley v. Kraemer, 334 U.S. 1 (1948).  In that case, the Supreme Court held that a state court’s enforcement of a racially restrictive covenant constituted sufficient action by the state to satisfy the Fourteenth Amendment’s “state action” requirement.  Racially restrictive covenants, like covenants that restrict free speech, infringe on a fundamental right. “Enforcement of private agreements by the judicial branch of government is state action for purposes of the Fourteenth Amendment, as the Highest Court in the land declared it to be in Shelley.” Gerber v. Longboat Harbour North Condominium, Inc., 724 F. Supp. 884, 887 (M.D. Fla. 1989), vacated in part on other grounds by 757 F. Supp. 1339 (M.D. Fla. 1991).

Of, course there is no state action inherent in the mere possibility of state court enforcement of an HOA rule. See Quail Creek Property Owners Association, Inc. v. Hunter, 538 So.2d 1288 (Fla. 2d DCA 1989) (unenforced rule prohibiting homeowners from posting signs did not trigger state action).  Therefore, if an HOA simply has the rule in its documents, no cause of action exists.  However, once an HOA crosses the line from prospective enforcement to actual enforcement with any actual legal penalties, the legal landscape changes.  See Gerber, 724 F. Supp. at 887, 724 F. Supp. 884, 887 (M.D. Fla. 1989, (holding unconstitutional a condominium rule prohibiting residents from flying the American flag except on specified holidays).  Therefore, a homeowner would not be able to make a claim against an HOA without enforcement of the rule.  This is exactly what happened in the New Jersey case—the HOA fined the defendant for posting his political signs, and the defendant was able to sue.

The New Jersey ruling applied specifically to political signs, and did not extend to other forms of home decoration.  The defendant in Mazdabrook was no stranger to litigation against the homeowners association—three years ago, he also filed a complaint against the homeowners association when he was fined for planting a climbing rose vine on his property.  In that case, the court determined that this restriction did not abridge free speech and ordered Khan to pay the HOA fines.