You Have Got to be Kidding

December 28, 2012

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

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!


Feminist War of 2012

March 16, 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

January 20, 2012

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!

September 29, 2011

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.


Email to an asshat about a free speech issue

September 24, 2011

I’m on a few list servs. I won’t say which one this originated on. But, lets just jump to what I said:

11 muslim students stood up to heckle the Israeli ambassador. Orange county prosecutor charged them with disrupting an event. While they may not have a right to disrupt the speech without being dragged out of the place, a criminal conviction for political speech is bullshit.

And if it had been 11 Yeshiva students disrupting a speech by a Palestinian, they’d get the medal of freedom.

I agree with all the nice things that have been said about Chemerinsky here, but his balls shriveled up into raisins over this event. (It took place at UC Irvine).

The response: It is “bullshit,” and “anti-semitic.”

Lets unpack that…

Bullshit? Maybe. He, you, everyone is entitled to their own opinion. I might even change mine, and one day repudiate my own opinion as bullshit.

Anti Semitic?

Don’t you love that one?

Since I’ve been a bit off my game blogging lately, I thought I’d mail one in here and just straight up share what I wrote in response to that.

Dear ______________,

Today, 11 men were convicted of a “crime.” The “crime” was “disrupting a speech.” The speech they disrupted was that of the Israeli ambassador. (source)

The “disruption” lasted about 8 seconds per “criminal.” In total, it was about a minute.

Interrupting him might not have been the most constructive way of making their point, but we cant lose sight of what they did. Why they did it. This was political speech. This was the most sacred kind of speech. And, this target was the least deserving of the law’s protection when speech is concerned — a public figure.

The Israeli ambassador was inconvenienced for less time than it takes to boil an egg.

And yet, for that inconvenience. That indignity. That quasi lese majeste. Eleven men were convicted of a crime.
The men were Muslims… The place is the most shocking part – Orange County, California, USA.

Although I despise the “what next?” rhetorical device… I just so need it here.

What next?

Hecklers at comedy clubs could be dragged out and thrown in the back of a cruiser where a drunk just puked? At least one lawyer would have to go to jail after every hearing. Fox news would essentially be illegal in California. My poor wife and I would probably each be witnesses in criminal trials against each other (privilege be damned!!!)

Criminally prosecuted for interrupting a speech.

We could all be arrested, every day, for this “crime.”

No we couldn’t.

Don’t insult my, or your own, intellect by thinking that this could have happened to anyone. Imagine if this had been a member of the Cuban government up there and some exilos from Miami showed up to yell. Do you think for a minute they would be charged, let alone convicted of a crime? Koreans showing up to voice their displeasure at a dignitary from the Hermit Kingdom? Jews in Skokie shouting down a nazi? Hell, nazis coming to Bensonhurst shouting down a Jew.

No, not even nazis get charged with a crime for merely interrupting a speaker.

And yet, for taking the position that these men were selectively prosecuted. For taking the position that this was all about their ethnicity and the content of their speech, some asshole thinks that I’m being “anti semitic.”

It is unfortunate. Because it is that kind of mentality that is at the root of the very reason these men were at odds with the man on the stage. Both of them have thrown in with their tribe rather than with their species. Like crabs in a pot, needing no lid, they would rather gouge out their own eyes than see through those of the other.

And it is that mentality that makes Palestinians unable to listen to Israelis. It is why Israelis can’t possibly back down to any criticism. It is why there are those who are so blind to their tribe, rather than to their entire human family, who decide that anyone who speaks against their interests in any way must be branded. He must be marked with the label of “anti-semite.”

I don’t really think it is my place to judge, but I’m gonna do it anyway. You reverse the polarity on that position, you don’t get a pretty philosophy. So, perhaps these guys did try and win the debate by shouting down the other speaker. That kind of conduct deserves a flag on the play. But what do you think trying to brand someone as something so abhorrent is? What do you call that, when you know it is a lie, you don’t care that it is a lie, but you say it because you know that it will score nice, cheap, points, and more than half the people who see it as bullshit will be afraid to call your ass out.

What do you call that?

I call that a pussy asshat move. So fuck you sir. Fuck you very much.

And really it is — for two reasons. One, to call oneself a First Amendment attorney and to think it is just that these 11 men were convicted of a crime — not merely removed from the room — and they were convicted not for resisting. Not for doing anything that hurt anyone else.

They.
Interrupted.
A.
Speech.
For.
A.
Minute.

In order to express their opinion on a matter of public concern.

And they were convicted of a crime.

It is sad enough that one would argue against the notion that this is wrong. But, like I said up top, everyone is entitled to their opinion on that. You know where I stand.

But, what a pussy asshat move to try and throw the “big bad bigot” card.

I have tried to think that I was wrong for taking that position. I’ve tried to see it through someone else’s eyes, and the only person I can see with eyes like that is a small minded and fearful person. Someone so insecure, so tepid, so small, that their only defense is to try and lob a bomb. Wanna play rhetoric like that? Here: It is rhetorical terrorism! It strikes at a target that should not be hit, for a reason that doesn’t deserve the energy, and he who employs it has already lost the high ground when they resort to it.

Of course, this is an equal opportunity beta trait. There’s the black guy that screams “racist” to do the same thing. The feminist who whines “sexist” if you disagree with her. You know what, jerkoff?

Those words MEAN SOMETHING.

If you just throw them against anything with which you disagree, you wind up pounding them thin to the point that they don’t mean anything anymore. You can even numb the alarm to those who really are those dangerous things. You create muck in which those dangerous things thrive.

So, I should have added to the end, “not only is a pussy asshat move, but it is anti semitic.”

But, I refrained.


Being a douche nozzle is no way to keep clients

December 29, 2010

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.