Happy Christmas. Fuck You.

December 21, 2012

Denham Springs, Louisiana resident Sarah Childs was in a dispute with her neighbors. So she exercised her First Amendment rights and created a special holiday message just for them.

bilde

The neighbors were not happy about this and complained. A lot. And Miss Sarah fought back. Source.

I’ve composed this Christmas poem just for her.

‘Twas the month before Christmas and all through the ‘hood
The neighbors all gossiped that Sarah’s no good.
Angry and tired her response did not linger
A Holiday light show comprised of a finger.

“Outrageous! Offensive! How dare she!” They whined
They called the cops and so she was fined.
She took down the show and felt quite dejected
Until the ACLU interjected.

The attack on free speech is a thing that’s quite shitty
So Sarah fought back and they sued the city.
The cops and the mayor remained so undaunted
that Miss Sarah’s steps from then on were haunted.

“I know what we’ll do!” Said the city with glee.
“We’ll make her sorry! You wait and see!”
A citation here and a ticket there
So much to the point that it’s hard not to care.

A wonderful plan was retaliation
Until they got nailed for a rights violation.
The lights went back up this time on the double
And this for poor Sarah was nothing but trouble.

The neighbors began to snivel and wail
This time they tried to throw her in jail!
The lights came down alas one more time,
It seemed all was lost- those fiends! That slime!

But the judge took her side and told the city to suck it
That First Amendment-ain’t no way you can duck it.
And all through the town her message rang true,
“Happy Christmas to all and to all a fuck you!”


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!


Sunshine is the best disinfectant – the Steubenville Rape Case

December 20, 2012

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

December 18, 2012
FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!!!!!

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.

December 4, 2012

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

December 2, 2012

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.

codysaltsman photo

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

December 2, 2012

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.


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