Marc Randazza about Section 2(a) changes

January 8, 2018

Marc Randazza shared his opinion regarding some recent First Amendment and Trademark cases.

15 U.S.C. § 1052(a) (known best as “Section 2(a)”) is a federal trademark law, which prevents certification of certain classes of marks that “may disparage” or can be “immoral or scandalous”. But at the beginning of the year, the Supreme Court found that prohibiting disparaging marks from being registered violates the First Amendment. So, Section 2(a)’s unconstitutional arrangements have finally fallen.

In his latest article on Popehat, Marc Randazza comments on two recent important cases: the Brunetti decision and the Tam precedent. Both cases include trademark registrations and the restrictions of Section 2(a). Since the Supreme Court struck down the disparagement clause, many people speculated whether the immoral or scandalous clause would survive.

Mr. Randazza notes that now, with Brunetti, we no longer need to speculate (if there is no appeal). Brunetti tried to register his trademark FUCT. But the United States Patent and Trademark Office declared that this mark is a synonym with “fuck,” making it sound vulgar, and thus conflicting with Section 2(a).

Now, the Federal Circuit has found that the “immoral or scandalous” restriction on registration is unconstitutional, a decision influenced by the Supreme Court’s Tam decision. The Brunetti court pronounced that the “immoral or scandalous” restriction was likely viewpoint-based.

The Tam decision tossed aside the government’s theories on censorship, that:

  1. Federal trademark registration scheme is a public forum that allows content-based restrictions on speech;
  2. The “immoral or scandalous” portion of Section 2(a) survived the lesser level of examination for restrictions on commercial speech.

In this case, the test was conducted. It was supposed to determine whether a mark is “immoral or scandalous” or if the general public would find the mark “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable . . . giving offense to the conscience or moral feelings . . . or calling out for condemnation.”

But finally, after years of unconstitutional actions by the United States Patent and Trademark Office, the trademarks registration process has changed and today there is no “immoral or scandalous” block.


Randazza: The Legal Battle Over Andrew Anglin Continues

December 5, 2017

An article about one of Marc Randazza’s most controversial and groundbreaking cases  – a case involving the founder of a Neo-Nazi website Andrew Anglin – was published in the December issue of the Atlantic magazine.

The article, “The Making of an American Nazi”, tells the story of the founder of The Daily Stormer: the site that is arguably the leading hate site and neo-Nazi platform on the internet. Anglin is now being sued for allegedly harassing Tanya Gersh, a Whitefish, Montana, real estate agent, and orchestrating an anti-Semitic online trolling campaign against her family.

In April, she filed a lawsuit claiming that anonymous internet trolls started bombarding her family with hateful and threatening messages after Anglin wrote a post blaming Gersh for engaging in “extortion” regarding a property sale from Sherry Spencer, whose son is another white nationalist and arguably the face of the alt-right movement. In that post, Anglin shared personal details, including photographs of Gersh’s family and other Jewish citizens of Whitefish, and called on his supporters, the “Stormer Troll Army” – to “hit ’em up.”

Currently, Gersh is suing Anglin for invasion of privacy, intentional infliction of emotional distress, and violation of a Montana anti-intimidation statute. Marc Randazza is representing Anglin in this case. Anglin is also accused of unleashing a campaign against other Jewish residents of Whitefish, as well as “cyberstalking” and aggressive online trolling of other people, whose identity or views are not in line with his beliefs as a white nationalist.

It’s also reported that apart from committing the aforementioned activities, encouraging his followers and fellow nationalists to share his views online and participate in cyber trolling campaigns; Anglin allegedly continued to grow his audience and supposedly urged them to take their hate from the online to the real world.

Marc Randazza, the managing partner of the Randazza Legal Group, is representing Andrew Anglin. This lawsuit has attracted the attention of legal experts and the public not only due to Anglin’s notorious personality, but because it’s the first time that an internet troll is being sued for his actions.

However, according to Marc Randazza, a well-known First Amendment attorney and a fighter for free speech, restricting Anglin’s online trolling may set a dangerous precedent for the American legal system. As Mr. Randazza commented, Anglin “has every right to ask people to share their views, no matter how abhorrent those views are…this is the shitty price we have to pay for freedom.”


Marc Randazza reacts to the Las Vegas shooting in his most recent CNN column

October 12, 2017

 

In his latest CNN opinion column, Vegas based attorney Marc Randazza reacted to the brutal mass shooting that happened in Las Vegas on October 2, 2017. Fortunately, neither Marc Randazza, nor his family members or friends, were harmed during that tragic incident.

However, as a First Amendment attorney and the managing partner of the Randazza Legal Group — a law firm that handles cases related to Constitutional law — Randazza could not remain indifferent.

While expressing his deep sympathy and condolences to the victims and the survivors, Marc Randazza emphasized that it’s fairly important not to let terrorists plunge the nation into chaos and fear. As Mr. Randazza noted, “Let us remember that those who kill innocent victims do not do so simply because they wish them dead — terrorism is about killing a few to strike fear into many.”

Oppressing people’s freedoms and restricting the rights of regular people isn’t the best way to react to mass shootings. Marc Randazza believes that we should “Do nothing but mourn, care and investigate. Yes, at some point this event will inform decisions on how we govern ourselves. But not today.”

Find out more about Marc Randazza’s response to the Las Vegas shooting in his most recent CNN column: “The best way to respond to Las Vegas massacre.”


Jail For Laughing Protester Is An Outrage

May 10, 2017

Marc Randazza’s most recent CNN column analyzes the recent conviction of Code Pink Protestor Desiree Fairooz after the media suggested she had been arrested merely for, “laughing at Jeff Sessions” during a Congressional hearing.

There is, of course, more to the story.

See: Jail for laughing protester is an outrage

When Fairooz laughed loudly during Session’s confirmation hearing, Officer Coronado removed her, which caused Fairooz to protest loud enough to disrupt the session. Fairooz was charged with, “disorderly and disruptive conduct and parading or demonstrating on Capitol grounds.”

However, it didn’t end there: Marc Randazza notes that a jury of her peers actually convicted her of these crimes.

Marc Randazza says, “Several jurors said they sympathized with Fairooz, but because the law is so broad that they felt they had no option but to convict.”

“[F]or Fairooz to be facing prison for her conduct is outrageous,” asserts Marc Randazza.

Marc Randazza reminds us that, “the notion of an American citizen going to jail for a nonviolent political protest is utterly antithetical to what this country is all about.”

But why?

As Marc Randazza points out, this has nothing to do with Ms. Fairooz’s message—as he admits he often does not agree with the message of Code Pink—this is about Free Speech and the First Amendment.

For Marc Randazza, it is not the message that deserves protection, it is the speech itself.

“The wall that protects the First Amendment is not manned with pretty happy smiling thoughts and easy-to-love characters. That rampart is manned by the ugly, the impolite, the impolitic, the disturbing image, and the thoughts that you may swallow no easier than if they were made from crushed glass.”

Read the rest here.


Marc Randazza’s most recent CNN column analyzes U.C. Berkley’s decision to silence Ann Coulter

April 27, 2017

See Dear Berekely: Even Ann Coulter deserves free speech.

There has been a wave of violent outbursts against conservative speakers during the 2016 election season, including violent protestors at Berkeley driving Milo Yiannopolous off campus a few months ago.

Berekley’s reaction? When the Berkeley College Republicans invited Coulter to speak, Berkeley canceled it, citing the recent violent outbursts as the reason. Marc Randazza explains that Ann Coulter suggested disciplining the students that engaged in violence, but Berkeley decided instead to reschedule the speech on a day when no students were on campus.

This is censorship.

Marc Randazza says that some people on the left feel, “emboldened by a view that ‘we’ are right and the Right (is) wrong,” and goes on to scold the left: “Shame on the Left for tacitly condoning this culture of violent suppression of views it disagrees with.”

Marc Randazza reminds us that we don’t need a First Amendment for speech that neither challenges, nor offends, because sometimes that very challenging and offensive speech fosters growth.

Marc Randazza points out that the left used to be beacons for free speech, and credits a few well known liberals for defending Coulter’s right to speak in the column:

“Are we living in an alternate reality, one in which Bill Maher and Bernie Sanders are sticking up for Ann Coulter?

What could have caused this rip in the space-time continuum?

The so-called birthplace of the free speech movement, the University of California at Berkeley, has once again engaged in liberal censorship, this time of Ann Coulter, using the fear of violence as cover to suppress a voice it did not like.”

Read the rest here.


Randazza Resoundingly Wins First Amendment Case

February 23, 2017

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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.


Two Issues with the FBI & Apple

February 18, 2016

by Jay Marshall Wolman, CIPP/US

By now, practically everyone who cares has heard that Magistrate Pym has ordered Apple to help the FBI crack open an iPhone related to the San Bernadino shooting.  The order is pursuant to the All Writs Act, codified at 28 U.S.C. sec. 1651.  In short, it is a catch-all that lets courts issue whatever orders they feel like.  In response, Apple CEO Tim Cook sent a letter saying he opposed the order.  Notably, he wrote:

But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.

There’s been a lot of discussion, but little focused on two issues that deserve some attention.  First, this isn’t simply asking Apple to turn over a piece of software or asking to borrow a gadget.  They are, if Mr. Cook is to be believed, asking Apple to write new software.  Software is a creative process, a means of expression; this is why it is protected by copyright. Apple itself was instrumental in this determination.  See  Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983).  In a nutshell, the Order is tantamount to ordering Frank Gehry to design a building featuring straight lines and right angles or ordering Stephen King to write a Harry Potter/Game of Thrones cross-over (assuming, in theory, a criminal investigation that would make such desirable).  EFF briefly touched on this last year in similar circumstances.  The All Writs Act may date to 1789, but it predates the ratification of the First Amendment in 1791 and is subject to it.  The Government may not simply compel speech.  See, e.g., Knox v. SEIU , 567 U.S. 310 (2012)(“The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.”).  

Second, there’s a certain subtext in Mr. Cook’s message.  What he says is that it is too dangerous to create, not that it is unfeasible to create.  The issue faced by the FBI is that the iPhone at issue may erase all data after too many failed attempts at a brute-force passcode hack.  So, they want Apple to design a work-around that would enable them to guess all possible passcodes without bricking the phone.  The auto-erase function is a security feature; the iPhone is encrypted by default.  We rely on this as part of our daily security–heck, I’m sure the government relies on it.  We’ve all seen street magicians use incredible slight of hand–how hard would it be for one of our diplomats, officers, or defense contractors to have had a foreign spy (let’s say–North Korean) swipe their iPhone (and SIM cards) and replace it with a counterfeit.  In that scenario, the person would try their passcode 10 times, fail, wonder why, but feel secure that the iPhone wiped itself.  Yet, the real phone would be in the hands of the foreign government.  Maybe the FBI and Apple haven’t yet developed the tool that bypasses the 10-tries-and-erase feature, but a foreign intelligence agency might have.  Our own NSA might have it also, but just isn’t sharing with the FBI.  This tells me that no iPhone is actually secure.  Though there is pretty much no such thing as an unbreakable lock, such a tool might enable a brute force attack on your phone to crack it in as little as 12 hours.  That’s more than enough time before the subject realizes his phone was swapped rather than just suffering a glitch.  As much as we may want Apple to be able to recover our phones if we forget our own passcodes, we really should want them to make a phone they themselves cannot crack.

These are the issues we should be discussing, in addition to whether we generally think it right for the government to ask Apple to hand over the keys to the kingdom.