Buzzfeed News profiles Marc Randazza and explores his high-profile, controversial cases

Marc Randazza, the lawyer working to protect First Amendment rights of people spewing socially undesirable speech, recently opened up to Buzzfeed News about his devotion to the First Amendment and how representing neo-Nazis, trolls, and Satanists helps him uphold what he believes is one of the most important ideals this country was founded upon.

The First Amendment guarantees United States citizens a constitutional right to freedom of speech. Government cannot infringe upon this right, although certain types of speech such as incitement, obscenity, and defamation do receive less protection. Protection can be based on the place in which speech occurs. For instance, speech that takes place on the campus of a public school has high First Amendment protection but speech in a private workplace receives little protection. Between court rulings and interpretation of the Constitution, protections of free speech have become pretty well defined over the last several decades. However, there’s one grey area that is polarizing First Amendment advocates today – speech on the Internet.

That’s where Randazza focuses much of his effort.

Section 230 of the Communications Decency Act (CDA) protects technology platforms from liability based on their users’ content, but despite this protection, tech giants are restricting their users’ speech. Facebook, Twitter, and YouTube claim they can take down any content they consider inappropriate or objectionable. Moreover, these platforms claim they have the right to ban undesirable members. Randazza believes that the Internet is a de facto public space, meaning it is privately owned yet publicly accessible, and therefore, online platforms must be more tolerant of such speech, especially given that they are afforded immunity through the CDA.

One group that claims they are a target of such discrimination are white nationalists. While their rhetoric is seemingly experiencing a wave of popularity, it’s also publicly despised and tech giants are being accused of suppressing it. Scratch the surface of Jared Taylor’s lawsuit against Twitter or Alex Jones’ lawsuit against PayPal and you’ll understand why Randazza thinks white nationalists are one of today’s most vulnerable groups in regard to the suppression of free speech.

Randazza has received heavy criticism from his peers not so much for his position, but more so for representing extremists like Taylor and Jones. But, he believes that protecting First Amendment rights is a matter of principle, not message.

“Sometimes we have to take people on who we find unsavory, but that’s what a commitment to the First Amendment means,” said Randazza.

Read the full article about Marc Randazza on Buzzfeed News.

Randazza Resoundingly Wins First Amendment Case

Once again Marc Randazza of Randazza Legal Group battled censorship in favor of wide open debate in his latest First Amendment victory.The 11th Circuit Court of appeals affirmed the anti-SLAPP win and the lower court’s decision regarding the “false advertising” claim.

The case is focused on the conflict of two doctors, Dr. Steven Novella and Dr. Edward Tobinick.

Marc Randazza represented Dr. Steven Novella, a Professor of Neurology at Yale School of Medicine and the editor of Science Based Medicine. On his website Dr. Novella writes about scientific debate in the medical community. Dr. Novella published negative opinions about Dr. Tobinick’s methods of off-label drug usage to treat Alzheimer’s disease.

Dr. Tobinick didn’t start the debate but filed a lawsuit against Dr. Novella for defamation. Also, he claimed that because the website hosted ads, the case was transformed into commercial speech. This case had a huge impact on publishers, but Marc Randazza successfully SLAPPed all legal claims and protected Dr. Novella’s right to free speech and debate.

Find more details on the Pissed Consumer blog.

An Open Letter to Journalists

Dear Members of the Media,

I sincerely appreciate all of your hard work in bringing us the news of the day. In this day and age, there is a lot of burgeoning information and it is cumbersome to sift through all of it to provide summaries to the masses. However, there is one thing you do not do that is incredibly frustrating–provide citations.

In reporting on a new science publication, you do not always provide a citation so that the interested reader can learn more. Worse, you rarely identify bill numbers, session laws, or case name/citations when reporting legal news. As a privacy attorney, I found the recent Massachusetts “upskirting” issue might warrant attention. It would have been helpful if you cited the case as Comm. v. Robertson, SJC-11353 (Mar. 5, 2014), even better if you provided a link: http://www.socialaw.com/slip.htm?cid=22645&sid=120 . Or, when the legislature promptly acted to outlaw the actions taken by Mr. Robertson, it would have been nice if you cited Acts of 2014, Chapter 23 (or H. 3934): https://malegislature.gov/Laws/SessionLaws/Acts/2014/Chapter43

As a journalist, I am assuming you read the primary source, so that way I can trust your reporting, correct? So, since you have the primary source, please make it easier for us and let us know how we can find it, too. Because, if you don’t share, it might turn out that you missed the real story. Let me spell it out for you–Massachusetts just made many previously lawful and proper hidden security cameras potentially unlawful.

According to the new law, it is now unlawful to secretly record images of fully clothed breasts, buttocks and genitals. Full stop. Your nanny thinks she’s alone, but you have a nanny-cam. Sorry, you probably just broke the law. You want to know which of the neighborhood kids have been going into your backyard when you aren’t home and stomping your daisies? That’s double the punishment.

Bad reporting of bad reactionary legislative lawyering. At least the reporting can be easily fixed.

Thank you.

Sincerely,
Jay M. Wolman

Mayer Brown, shame on you. (日本、ストライサンド効果へようこそ)

The offensive statue.
Photo Courtesy of Melissa Wall, Ph.D. under a creative commons license.

Every law firm gets confronted (on a pretty regular basis) with the question: “should I put my name on this?”

That soul searching comes into play when you wonder, “is this honorable?” You know when it is, and when it isn’t.

I’m not talking about representing a client that you know is guilty — they deserve a defense. I’m not talking about representing a really evil client — because there might be an important legal issue in play.

I’m talking about when you do something truly disgusting.

That bar is pretty low. Despite the lawyer jokes, I have encountered few lawyers who have ever even approached that line.

If a law firm takes on the Nazi party as a client, in furtherance of some greater good, I do not look down on them. Nobody should. Represent a child pornographer? I can see plenty of justification there. There is almost no cause that doesn’t have some justification.

But, sometimes you gotta say “no.” Or, at least if you say “yes,” you must do so with class and dignity.

For example, if you represent a child molester, that is ok. You take it on from the point of “I may not condone what my client did, but he has a right to a defense.” But, if you put in your pleadings “the kid had it coming to him, he just looked so fucking sexy in that altar boy outfit,” well then… you are a dishonorable and filthy-taint-licking-piece-of-shit.

Ok, got that? That is the bar you need to step over. It doesn’t take strong leg muscles.

I’m sort of disappointed that I have to draw that distinction for anyone. But, I come to you with proof that this lesson is actually necessary.

Mayer Brown brings you this masterpiece— a lawsuit where they are trying remove a memorial for World War II “comfort women” from a public park. You see, it “offends” some of their clients. The cause itself is a bit slimy, but how they’re going about it qualifies them as “the least honorable law firm in the world.”

For those of you who do not know what the “comfort women” were — they were about 200,000 women (some say as many as 400,000) who were forced into working in whorehouses for Japanese soldiers during World War II. (source)

Many were abducted, and some were barely in their teens. “I was taken at the age of 11,” one former sex slave Kim Young-suk said.(source)

As you can imagine, these women were not terribly pleased with this treatment. And, wouldn’t you know it, but some of them are still all harping on the past.

The few surviving comfort women, all in their 80s and 90s, cry foul.

“I was walking along the side of the road when I was captured and taken away,” says Ok-Seon Yi.

It was 1942, and Japanese and Korean soldiers grabbed her and threw her in the back of a truck. Her family never knew what happened to her, she said, and gave her up for dead. She spent three years at a military brothel in China. She was 15.

She’s 87 now and lives in a home for survivors like her outside of Seoul. She’s tiny, with white hair, frail and quiet — until the subject turns to Japan.

She shakes her fist. “The Japanese government are thieves,” she says. “They’re trying to rewrite history.

“They have no right to take away my honor and dignity,” she adds.

She says she’s thankful for the memorials in the United States, and says America is the only country that can right the historic wrong. (source)

So in comes Mayer Brown to try and put and end to this outrage. Not the outrage of forcing a couple hundred thousand girls and women to suck the cocks of filthy imperial soldiers, mind you — but the atrocious conduct that happened in the City of Glendale, California. You see, the City of Glendale has done something awful — it put up a memorial to the “comfort women.”

“They were raped maybe 10 times a day. On weekends, as many as 40 to 50 times a day. The majority of them were teenagers,” says Phyllis Kim, who as part of Los Angeles’ Korean-American Forum helped bring the statue to Glendale. “There are victims who are still alive, and waiting for an apology.” (source)

This little statue does not sit well with… well, lets scratch our heads for a minute about that, shall we? Who are Mayer Brown’s “clients” in this lawsuit?

Two of the plaintiffs are Japanese-Americans who live in Glendale. The third plaintiff is an “organization” called “GAHT-US.”

Plaintiff GAHT-US Corporation (“GAHT-US”) is a non-profit public benefit corporation organized under the laws of the State of California. The purpose of GAHT-US is to provide accurate and fact-based educational resources to the public in the U.S., including within California and Glendale, concerning the history of World War II and related events, with an emphasis on Japan’s role. (Complaint at Para. 7)

Well, if we look for GAHT-US (The “Global Alliance for Historical Truth”), what do we find? We find that it is a corporation that someone created on February 6, 2014. After 14 days of legal existence, this lawsuit was GAHT-US’s first act — well after slapping up a web page.

This “Global Alliance’s” address is 1223 Wilshire Boulevard #613. That’s a UPS Store.

The world headquarters of GAHT-US

Ok, so with that illustrious organization out of the way, lets look at the two people that they managed to get to stand up for this noble cause…

As a Glendale resident of Japanese heritage, [Michiko Shiota Gingery] believes the Public Monument presents an unfairly one-sided portrayal of the historical and political debate surrounding comfort women…” (Complaint at 2).

The other Plaintiff, Koichi Mera, had similar gripes. I do see their point. I mean, on one side you have all these women who were kept in sexual slavery and essentially gang raped for 4-5 years. But, where is the side of the poor Japanese soldiers who had to fuck them? What of them? Have you ever had to fuck a woman who was captive and crying? I mean, think of it? Those poor Japanese rapist soldiers. The fact that nobody thinks of the other side in this discussion is really distressing. Bravo, Mayer Brown, Bravo.

Additionally, the Plaintiffs are upset because the monument offends them. They “would like to use Glendale’s Central Park,” but they now avoid the park because they are offended by the Public Monument’s pointed expression of disapproval of Japan and the Japanese people.(Complaint at 2, 4)

Guess what? I bet the City of Glendale actually loves Japan and the Japanese People. Aside from the fact that they seem to have a disproportionately large number of scat porn enthusiasts (second only to Germany), and this little “comfort women” thing, the Japanese are a-ok by me. For fucks’ sake, they gave us Godzilla. After being the only country to ever get nuked into the stone age, they staggered around for about 18 months, and then they kicked the entire world’s ass at technology, amassing wealth and power on a level that it took 17 Italians to equal the productivity and innovation of one Japanese high school girl with a Hello Kitty purse.

But yes, we all have our blemishes — and government-organized mass rape is a pretty bad one.

So if the consequence of such a sick-as-fuck act is that there’s a bronze statue in the corner of some obscure park 10,000 miles from the nearest piece of Japanese territory, I think that’s pretty fair.

Ok, so their clients are offended and rich, (I presume the rich part). The complaint has at least some rational points. They seem frivolous, but not completely off the wall. One part of the complaint discusses how this memorial interferes with the foreign relations between the United States, Japan, and South Korea. (Complaint at 14). I’m not saying it is a supportable argument, as Boos v. Barry, 485 U.S. 312 (1988) seems to dispense with the key point here. In that case, a D.C. ordinance sought to suppress speech that might chafe foreign powers. This is a little different, since it is private citizens trying to suppress governmental speech, but the core of the matter is the same — smooth foreign relations are not a sufficient justification to suppress speech.

The complaint also makes one rational argument –That the monument went in without the proper procedure being followed before the Glendale City Council. (Complaint at 16). I have to agree with this one (if it is true) — cities should not be engaging in ultra vires acts. And, the complaint could have made those arguments, stating that the complaint was brought reluctantly. Or, just lay off the victims, but make the dull legal points.

But no.

No.

Instead, Mayer Brown put its name to gems like this:

During World War II and the decade leading up to it, an unknown number of women from Japan, Korea, China, and a number of nations in Southeast Asia, were recruited, employed, and/or otherwise acted as sexual partners for troops of the Japanese Empire in various parts of the Pacific Theater of war. These women are often referred to as comfort women, a loose translation of the Japanese word for prostitute. (Complaint at Para. 14) (emphasis added)

You know… “whores.” They just “acted as sexual partners.”

I mean, lets just call them what they really were, BATTLE SLUTS!!!

Right now, my face is figuratively bright red and in searing pain from the epic facepalming that I am imagining doing to myself.

The complaint reads like a who’s who of hypocritical trash. Yoshikazu Noda, the poor mayor of Higashiosaka, Glendale’s sister city is quoted as saying that the installation of the monument was “an extremely deplorable situation and the people of Higashiosaka are hurt at a decision made by [Glendale] city to install a comfort woman monument.” (Complaint at Para. 38).

Awwww… does it hurt, Noda? Can you describe the pain? Is it anything like being kidnapped, and then being raped repeatedly, every day, for four or five years? Does it hurt like that? Or just like when you step on a Lego brick in the middle of the night — because that, I tell you, absolutely fucking smarts.

The Plaintiffs want the monument removed and kept off of any and all public property in Glendale, and of course, they want money. (Complaint at 17).

I will give them some credit — at least the complaint did not call for all the remaining comfort women to be rounded up and shipped off to Manzanar.

Despite that small bit of tactful omission, I have never seen anything this dishonorable with a law firm’s name attached to it. I’ve seen dumber shit. I’ve seen more frivolous shit. I’ve seen more unethical shit. But, never seen anything this foul or shameful with a law firm’s name attached to it.

The silver lining in this? Mayer Brown’s abject stupidity and dishonorable behavior will bring their clients into complete disrepute (which they deeply deserve), and will educate more people than ever on the history of the “comfort women.” The “comfort women” have already won this battle – and they aren’t even really on the field.

Don’t let the bastards get you down, “Comfort Women”… Mayer Brown just made your critics into complete laughingstocks.

UPDATE: Looks like Popehat is pissed off about it too

I have written about many maddening lawsuits at Popehat. But I cannot remember a lawsuit that so immediately repulsed and enraged me. (source)

Knox. Knox. No Justice There.

By Tatiana von Tauber

What do you think of this Amanda Knox story?

I watched her interview here . It’s moving. I’ve been following the case for years and I empathize as sometimes facts lead to conclusions which create illusion, not truth and it is here we discover the depth of trust (and fault), in ourselves and our systems.

What is justice? Truly, at what level can another human being say “this person deserves x, y or z for punishment” and call it a day? Who is satisfied? What or whom does that “justice” affect and what is its effect? Will our community be better off with someone like Amanda in jail so we are safer or are we merely seeking justice built on what we believe a victim’s life is worth because it’s socially demanded we punish those who kill?

If Amanda Knox did aid in murder, has her emotional turmoil and years already spent in prison – in the battle for her freedom – not counted as “time served in prison” if prison is defined as a place of punishment? Has her particular suffering not counted as anything at all? For the Italian court to accuse Amanda Knox of guilt after innocence, and weigh a hefty 28 year term on her is so striking I feel violated and I’m just a spectator!

Let’s face it, society places value on murders. They happen all the time. Every day.  Why is the destruction of Knox’s life more important than the destruction of yesterday’s murderer? And what about tomorrow’s murderer? What is jail for? Is it a place to make another person suffer for their pain onto another or is it a holding cell to keep the rest of us safer? What factors determine when it’s both? Or is jail a place where we feel, as a society, a sense of accomplishment in that we are doing what we’re supposed to do to “bad people”? Is there hope to rehabilitate or only institutionalize?

I don’t know if Amanda is guilty or not. I do know that I find her to have suffered a good deal for the circumstances upon which she found herself. There’s a point where another human being should suffer for murder (Hitler comes to mind) and then there’s a point where another human being should be given reprieve when being played with like a pawn in a game and having clearly suffered through an aftermath of such accusation. How is 28 years more of prison time a case of justice served at this point in time?

Amanda Knox presents herself very authentically. Maybe she is faking it but to imprison her for another 28 years for a crime that’s been tainted is a crime onto itself. It is way too harsh and unreasonable. Consider that killing the enemy in war constitutes as justified murder – freedom fighting we call it – but Knox’s situation demands almost three more decades of her life? From an innocent verdict to “guilty beyond a reasonable doubt”?  Should this be the perfect case of “let it go”?

Life gets complicated when you discover that human beings have varied value and thus death isn’t the most atrocious thing we can do onto another.  The freedom we are given should never, ever be taken lightly as that option for choice is always at risk of being taken from others. I commend Knox’s ability to stay so vigilant with her freedom at hand and it’s terrible to have freedom handed to you like a toy to jump for.

For Italy, home of the Vatican, to not be an example of forgiveness in the light of tainted investigations (and prior innocent verdict!) certainly seems in line with the church’s very own hypocritical philosophy. Italy should have risen above common human nature of reaction. Punishing Knox will do absolutely nothing to bring back the victim, show or teach a lesson that hasn’t already been shown or taught, nor will it contribute to Knox’s potential good, to which I believe Knox is capable of expressing given the opportunity.

By demanding to lock her up further, Italy has shown an example not of justice but “murder to the spirit”. Knox, if imprisoned, would be as lifeless as the victim in the sense that neither could flourish, live a life to better themselves or others and nor contribute to the world through the good that is within them because they weren’t given a chance. One loss of life is enough but when grounds are not certain, why not give benefit of the doubt and rise above human weakness? Sometimes bad things happen and while time is the best healer (and eye-opener), it’s best to move on quickly to weave those experiences into new creations. Give people a chance. Justice is a human construct and in the case of Knox, justice begs for reinterpretation.

Amanda Knox interview: (http://gma.yahoo.com/amanda-knox-39-couldn-39-t-believe-hearing-071851472–abc-news-topstories.html?vp=1)

When is malpractice a good thing?

Well, never. But, in the case of JK Rowling’s outing as the real “Robert Galbraith,” perhaps it had a sliver lining?

Rowling wrote a story under the Galbraith pseudonym. But, Rowling’s lawyers screwed the pigeon.

Chris Gossage, an entertainment lawyer and partner at the law firm Russells, was apparently showing off when he told his wife’s best friend in a “private conversation” that Rowling had been writing under the pseudonym Robert Galbraith, a “married ex-military man” credited as the author of The Cuckoo’s Calling. (source)

Usually when a lawyer blows up the attorney-client privilege, there isn’t much to celebrate. The client gets pissed off, and everyone runs to plug the leaks. (Or so I would imagine, I haven’t managed to be in this situation yet, and hope never to be). But, in this case, it seems that Mr. Gossage pulled on a string that he wasn’t supposed to touch, and a shitton of money fell into the client’s lap.

The Cuckoo’s Calling, which had only sold a few thousand copies prior to the revelation about Rowling’s authorship, has soared to the top of bestseller lists, and Rowling’s publishers have ordered a reprint of the book to meet demand. Meanwhile, Rowling will reportedly write more books in the Cuckoo’s Calling series. (source)

I still would not wish to be in Gossage’s shoes.

Alleged Copyright Troll’s Day in Court

No matter your opinion on U.S. copyright law, it is the law of the land. Copying a work without consent may be unlawful and subject the copier to damages. On this blog, and others, we’ve seen instances of legitimate and illegitimate copyright claims.

An entirely separate issue is the manner by which copyright claims are enforced. In the U.S. District Court for the Central District of California, there have been concerns raised regarding certain attorneys, their firms, and (as the judge termed it) their “shell” companies. Yesterday, a hearing was held at which certain non-appearing attorneys affiliated with Prenda Law were invited to attend, as well as an attorney formerly associated with that firm. Ken White at Popehat attended and his writeup is here: http://www.popehat.com/2013/03/11/brett-gibbs-gets-his-day-in-court-but-prenda-law-is-the-star/

This is a case in which the Plaintiff even dismissed the case against the Defendant, but the Court is exploring whether there was fraud committed by the Plaintiff or its counsel in consolidated and related matters. Hearings like this generally do not occur, and apparently the non-appearing attorneys affiliated with Prenda appeared by counsel, rather than in person, which may have violated the court’s order (although they made a last-minute filing arguing they could not properly be compelled to attend). What is particularly interesting is that the subject lawyers and Plaintiffs have been intimately involved with the development of how Bittorrent claims are prosecuted, including early discovery orders, mass joinder, etc. Of note, it has become practice for a content provider to sue John Does, because all that is available is the IP address used to access a covered work. A subpoena is issued to the ISP, who may provide the identity of an account holder. Common practice is then to make a demand on the account holder or amend the complaint to identify them by name. Of concern by this court and others is that the account holder may not be the infringer. A content provider may need to engage in further discovery and investigation to find out who may have had access to the internet connection prior to naming the person as defendant. Recent rulings have suggested that just as you cannot simply sue the person who owns a telephone for a call that may have given rise to liability, you must sue the caller, you cannot simply sue the internet account holder. This court has questioned the Plaintiff’s and its attorneys’ efforts in identifying the infringer. Additional procedural concerns are raised in this case over who financially benefits in the litigation and how content has been transferred.

The docket in Ingenuity 13 v Doe, 2:12-cv-08333 is here:
http://ia601508.us.archive.org/28/items/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744.docket.html

You Have Got to be Kidding

Hunter Moore:  Amateur

Craig Brittain:  Lightweight

Looks like posting compromising photos of unsuspecting victims is not enough.  Someone, who obviously once sat on a copy of the nutshell on copyright and online speech to sit at the grown-ups table, decided that merely posting photos was insufficient.  This vile person decided it was all hunky-dory to simply solicit photographs of so-called prostitutes without any credible evidence (not to be confused with Smoking Gun, which publishes mugshots and such of people actually arrested).

 

For your disgust, I present: PotentialProstitutes.com

Solicits submissions and offers removal for $99.  Thinks Sec. 230 is a safe harbor, when he is choosing to publish.  Libel per se, anyone?

 

h/t Ethics Alarms

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!

Feminist War of 2012

By Tatiana von Tauber

I’m embarrassed to be an American woman with witness to the current state of the Union.

Being a woman is without a doubt the most difficult process of becoming I’ve ever undertaken especially since I began my role as a mother 14 years ago. Nothing prepares you for the experience of motherhood better than truth and so I feel the same about the future of young girls in America.  There are many I know who were totally lost in the wake of the conservative pool of stupidity in the days of GWBush and his side’s abstinence education policies in American schools.  There is an entire generation of kids who are completely misinformed about birth control and sex because of religion.

More and more I feel battered by having the feeling women were given erotic beauty for reproductive purposes – that selfish gene – and then, as though being whores weren’t enough, women were thrown into the immature flatlands of male needs where they were then expected to create synthesis. However, a bit of a power struggle later, women became those to not only seduce, but birth, nurture and support an entire family, if not society yet be given “jump for the carrot” freedom on body parts – by the very men they birthed!  How did America come to be like this? If American politics continue to enter the domain of a female’s sex life,  America has little to offer women of the next generation.

I’m drained from realizing Congress is really a bunch of men who can’t get their heads out of the female genitalia.  If they don’t pay to get in one they pay for others to stay out of one!  For the men who are playing around with this issue, women are only a piece of ass and little more, except maybe for their little girls who are a piece of ass for the boy next door. For women who support recent attacks on female rights in the name of being faithful to a God, I have no words, only disgust.

Reproductive rights, the womb, women’s health – all of it has to do with the absolute power this birth right gives to women; and patriarchy has never been stronger in modern America! As an American I am so appalled at this downfall of this great nation – that the womb and its ownership, the vagina and a woman’s health are on the table of political discussion rather than the real issues that need immediate attention, it all makes me want to throw up on Congress.

The bottom line to all this rhetoric is this: women have the power to veto men through sex and men don’t like that. Thank you Dr. Leonard Shlain for helping me understand this through your wonderful work, Sex, Time and Power (may you rest in peace) but how about a little help down here with the rest of the blind folks, eh?

The last time I checked, my kidney belonged to me and nobody could force me to do anything specific with it.  The main reason the womb is different is because it controls males’ sex lives.  The fact that women are under attack, in America, in 2012 stuns me.

Here’s my contribution to the debate: “Feminist War of 2012”.  I designed this back in 2007 or so and struggled with a proper title.  The Image just found its perfect match and almost sadly, its perfect time.

"Feminist War of 2012", ltd. ed. Giclee, 13"x19" by Tatiana von Tauber

Bonus material to chew on: 

Speaking of controlling women, this is an example of how women get screwed by men and the baby fantasy and how media uses them to make money to help glorify the chaos and continue the cycle.  See Kate Gosselin, mother of 8 now.

Great post and kick ass quote: The Body Politic, “This campaign needs more women and less gynecology” – Virginia Heffernan

Let’s Be “Newtly” Open

by Tatiana von Tauber

Would you find your spouse immoral if s/he asked you for an open marriage? If you’re like the general population, probably so and that’s because monogamy in marriage is so entrenched in our Judeo-Christian culture as the best way that it’s very difficult to pull out of such a norm; however, I believe Newt Gingrich showed a higher level of moral character than his current judgment dictates with respect to his second ex-wife, Marianne Gingrich’s disclosure he asked her for an open marriage.

In politics as in marriage a lot of things happen in the background that aren’t always in plain view. Mixing the desires of more than one individual requires compromises otherwise you’re left with lies for solutions. Just look at history for evidence.

By Newt Gingrich asking his second wife – now the ex – for an open marriage he actually proved his moral character via his ability to simply be honest about his feelings and desires and ask in spite of the backlash from what would traditionally be considered immoral (from their camp anyway).

This honesty is honorable. While the request may or may not be, there cannot be confusion between the difference of the request and the honesty which manifested it.

I suppose Marianne Gingrich would have preferred her ex husband to exhibit typical politician behavior and pin a little twinkie behind closed doors, then lie about it to his wife only for her to discover later he was a sperm donor too. Poleeze.

Some people prefer truth and others like the illusion. For me, a president who likes truth based on the situation at hand is a better choice than the cowardly liar – though at press time he’s denying the open marriage allegation but then that just shows you lies are the skin of politics.  Strip the skin and kill the beast.

Sarah Palin Threatens a SLAPP Suit. Stupid? You Betcha!

By Marc Randazza

Sarah Palin always seems to be talking about families.  Despite bashing that door open, she takes such umbrage when anyone mentions her own.  So, When writer Joe McGinniss starts digging for facts and sources to complete his book “The Rogue: Searching for the Real Sarah Palin,” what does Sarah do?  She lawyers up and threatens to sue… you betcha!

If this strikes you as unseemly – a former governor and vice presidential candidate who clings to whatever relevance she has left by making noise about seeking the presidency and touting her unfortunately named family, threatening to sue for investigative journalism about her background – then congratulations: You’re not a mendacious piece of shit.

The United States Constitution is quite clear on this issue: Public figures must prove actual malice (i.e., knowing falsity or a reckless disregard for the truth) to prevail in a defamation action. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).  This is a particularly applicable when the public figure is also a politician, and the speech addresses matters of public concern – namely someone’s fitness for office and prior conduct when wielding (and abusing) executive power. See Boos v. Barry, 485 U.S. 312 (1988); Connick v. Myers, 461 U.S. 138 (1983).  This kind of political speech is the most highly protected by the constitution and the very lifeblood of a functioning democracy. Consider this quote from the “God Hates Fags” case.

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011), citing Tex. v. Johnson, 491 U.S. 397, 414 (1989).

If the Constitution provides such strong protection for the Westboro Baptist Church spewing its stupidity and hate, is there any doubt about reporting on a politician’s fitness for office? Of course, but there is no need to invoke the highest ambitions of the Constitution and the lofty rhetoric that accompanies them.  Sarah Palin is a bully, and not a very smart one, so we’ll keep this in terms she and any her attorney can understand.  Her legal threats can be debased by the law within Alaska’s boundaries, without having to look outside the state – to Russia or elsewhere.

Alaska is no stranger to the public figure doctrine. Lowell v. Hayes, 117 P.3d 745, 751 (Alaska 2005); Mt. Juneau Enters., Inc. v. Juneau Empire, 891 P.2d 829, 834-35 (Alaska 1995).  In Lowell, the plaintiff sought declaratory relief determining that the defendant had defamed him, arguing that the actual malice standard would not apply to such an action — as it had only been used in actual defamation claims in the past.  The Alaska Supreme Court soundly rejected this argument. Lowell, 117 P.3d at 757.

In Mount Juneau, the Alaska Supreme Court adopted the test used to determine whether a plaintiff is a public figure in Gertz v. Robert Welch, Incorporated, 418 U.S. 323, 345, 351 (1974).  The Mount Juneau court articulated its criteria thusly:

For the most part those who attain this [public figure] status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.

[…]

[The public figure] designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby become a public figure for a limited range of issues.

So let’s go down the checklist.  Roles of especial prominence in the affairs of society?  Former governor, former vice presidential candidate, and on-again, off-again presidential hopeful. Check.  Occupy positions of “such persuasive power and influence” that she is a public figure for all purposes?  I can escape her state, but cannot avoid her on television, in the bookstore or in the hackneyed catchphrases of soccer moms.  Sadly, that’s power – and the worst kind. Check.  Thrusting (heh) herself to the forefront of public controversies? CHECK CHECK CHECKITY CHECK.  That’s exactly what got her here – and now that she can’t get her and her idiot kids to relinquish the spotlight, she thinks she can sue it away.  Not quite, Sarah.

Whether by the designs of others or her own half-witted ambition, Palin is undoubtedly a public figure under Alaska law.  And while the speech promulgated by McGinniss and other investigators is of interest to everyone, it is of particular interest to the poor souls known as Alaskans, as so much of Palin’s scrutinized past relates to her mismanagement of the state.

This is to say nothing of the Streisand Effect, though that ship likely has sailed.  If there is anything we don’t know about Sarah Palin, we’re going to find out, as she carries the burden of proving the statements about her are false. Mt. Juneau, 891 P.2d at 835; see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 11-17 (1990).  If Palin cannot prove that the statements she objects to in the book are false, she’s going to have a lot of problems trying to tamp them down in the future – and, indeed, her failed defamation crusade may open new investigations and speculation about the half-term former governess.

Indeed, even under Alaska’s laws, Palin has a steep hill to climb:

Actual malice involves a subjective inquiry into a speaker’s intent — specifically, whether he knew that his defamatory statement was false or recklessly disregarded the possibility of its falsity.  A plaintiff must prove by clear and convincing evidence that the declarant acted with knowledge of the statement’s falsity or in reckless disregard of the statement’s truth or falsity.  To show that a declarant recklessly disregarded the truth or falsity of published material, a plaintiff must show that the declarant entertained serious doubts as to the truth of the publication.  A defendant’s failure to make a prior investigation into the accuracy of published statements does not, by itself, constitute actual malice.  Neither does a defendant’s incorrect usage of a key term or word whose meaning is reasonably disputed.  Thus, the actual malice standard is a difficult one to satisfy.

Lowell, 117 P.3d at 751 (internal quotations and citations omitted).

In short, it looks like Palin’s threatened litigation is about as viable as her presidential campaign.  But, God bless her misguided heart, don’t let that stop her.  If Alaska had an anti-SLAPP statute, I would not merely refrain from discouraging this litigation, I’d dare Palin to bring it.

Being a douche nozzle is no way to keep clients

by Jason Fischer

Of course the headline here seems like common sense, but what’s surprising is that many attorneys have trouble with this bit of wisdom.  As surprising as it may be, understanding why practicing attorneys have trouble controlling their aggressive tendencies is not difficult when you think about it.  The problem is, when you have to spend 80% of your time dealing with deadbeats and scam artists, you end up in a near-permanent state of cynicism.  Hell — in a lot of instances, it helps to be a bit of a dick.  This, of course, is the motto of any self-respecting alpha.

Good attorneys, however, know how and when to turn off the bloodlust.  The best attorneys manage to avoid it altogether.  The moment you start to get emotional about going after that one defendant, the moment it becomes personal for you, there is a real danger that you’re going to accidentally misdirect that energy.  If you lose the big picture in a haze of red, bad things can start to happen.  Recent events in the heated debate over copyright enforcement serve as proof.

Larry Flynt Publications (LFP) just parted ways with Evan Stone, an attorney that was hired to pursue the hundreds of BitTorrent users who are illegally trading copies of one of the company’s recent video titles, This Ain’t Avatar XXX.  When Stone wanted to press harder than his client, not surprisingly he got the boot.  It turns out that when LFP was unwilling to bite the hand of Time Warner Cable, an ISP dragging its heels on turning over customer information tied to IP addresses used to share the movie, Stone became unhappy with LFP’s intestinal fortitude.

According to LFP President Michael Klein . . . the shifting focus from the alleged pirates to putting pressure on the cable companies was not a strategy that appealed to the iconic adult company, which has a television division and continuing global ambitions that require it to be a partner rather than an antagonist with companies like Time Warner.  . . .  Klein said that as much as LFP is determined to maintain a professional relationship with cable operators, it was ultimately their frustration with Stone’s aggressive PR tactics that led them to the decision to end the contract with him.

“He wanted us to put pressure on the cable operators, but it’s not our goal to go after them,” Klein told AVN.  “We want to look at ways to go after pirates, and we thought this strategy might work out, but the reason why we terminated with Stone was because of what we considered to be his unprofessional tactics.”  (source)

Even though the company was happy to quietly let him go, Stone took the more douchey path of announcing his break with LFP to the press.

Plenty of attorneys argue — and they’re not necessarily wrong — that being successful requires adopting the client’s problems as if they were the attorney’s own.  However, very few businesses become successful by playing hardball with everyone the way an attorney would.  (Similarly, any company that is always as cautious as their attorney advises will likely fail to excel.)  The problem comes when your level of tenacity goes beyond the client’s, and fighting the problem becomes for your benefit rather than theirs.  This is almost always a recipe for disaster, especially considering it can require superhuman empathic skills to know where the line is sometimes.  Unfortunately, there’s no law school course that will give you the paracortex of a Betazoid, so you’ll have to rely on your own douchetastic meter to figure out when you’ve gone too far.  There’s no surefire way to navigate this conundrum, but staying away from brash and overly aggressive tactics will help, and that’s a good practice in any endeavor.

In Savannah we ask and we tell

By Tatiana von Tauber

It’s terribly difficult seeing the truth that sits before me.  In the #2 spot for romance and weddings in the U.S., love on the whole seems to be elusive rather than understood.

 

WJCL - FOX28 Savannah News

“The City of Savannah is considering extending benefits to same-sex couples.  Do you think the extension is a good idea?”

Yes: 21.1 %

No: 68.4 %

Not sure: 10.5%  (source)

Sorry to disappoint you Lady Gaga.

The virtue of telling a client to piss off

Popehat is a blog that I think was born in the same litter of puppies as the Satyricon. We love them. Reason #1 — constant Dr. Who references. Reason #2 — ethics lessons.

In this piece, Patrick provides us with a fantsays letter (based on a phone call he had) declining to represent an insurance company that wanted to sue kids who attempted suicide. In their failed attempts, the kids apparently made a mess in their insured’s homes.

In this day of the legal profession going to hell, and all of us scrambling to stay with the “haves,” as the income gap widens, Patrick’s “fuck you” letter should be distributed to all first year law students. As a lawyer “I am only doing my job,” is not an excuse for doing something sleazy, shitty, or shady.

Anyone who takes those cases should be disbarred and then they should have a bees nest shoved up their asshole, and it should be capped with a cactus. The same fate should befall the flunky who suggested that this might be a basis for a viable claim.