Big Win for TMZ & Nevada Anti-SLAPP law

April 11, 2016

Last year, Dan Bilzerian, professional poker player and Instagram playboy, sued gossip website “The Dirty World” for publishing a story about a woman who alleged Bilzerian gave her Chlamydia. The media news website TMZ posted an article about the lawsuit, and Bilzerian amended his initial complaint to include TMZ as a defendant, alleging TMZ’s article was false and defamatory. Of course, we (Randazza Legal Group) filed an Anti-SLAPP motion on behalf of TMZ in Clark County District Court. We’re happy to say the court granted the Anti-SLAPP, dismissed all of Bilzerian’s claims against TMZ, and awarded costs and attorneys’ fees.

Just another good day in the world of journalism and Anti-SLAPP law. Check out the TMZ Anti-SLAPP Order here.


Violence and Political Speech

March 21, 2016
I don't write the headlines

I don’t write the headlines

My most recent CNN Column discusses violence in political settings. See Defend Donald Trump’s right to free speech

I don’t get to write my own headlines, ok?

Some good people think that sometimes being violent is ok. What they don’t understand is that when we use violence in politics, no matter what, the bad people always win. They get to escalate the violence, feeding off of it, up to a point where the good people lose the stomach for it — or at least a critical mass of them lose the stomach for it.

Always.

And the bad people will always have more of a stomach for it, so in the war of attrition, they will win. They’ll always be willing to bash you over the head with a truncheon for less of a reason, with more willingness to keep going long after your head looks like cherry pudding. They’ll always go further on a macro level too, they’re the bad guys because they’re sociopaths.

No matter how right you are… if violence ensues and you win? You’re probably one of the bad people. I don’t care if you’re protesting against the KKK or NAMBLA or the Black Panthers or ISIS or Nickleback fans.

That’s kinda the point of my column:

Donald Trump finally learning about the meaning of free speech?

Other candidates might be bad for free speech once elected. But Trump is the only candidate to actually campaign to reduce our First Amendment rights. This is the guy who said, “There used to be consequences to protesting. There are none anymore. These people are so bad for our country, you have no idea, folks.”

On Friday, he canceled a rally in Chicago, citing security concerns. Eyewitnesses reported that there were thousands of protesters outside, and hundreds demonstrating “in unison inside.”

Even after it was canceled, there were reports of several outbreaks of violence in the streets after the speech and protesters celebrating by chanting, “We stopped Trump!”

And now, while everyone is trying to play the blame game, Trump ironically asks, “What happened to freedom of speech?”

Read the rest here.

This post originally appeared on Popehat. View it here.


A fabulous Roman candle exploding like a spider across the stars

March 20, 2016

kerouac

On March 12th, 1922, the universe lit the fuse on the roman candle of the existence of one Jean-Louis Lebris de Kérouac. Somewhere along the line after that there were girls, visions, everything; somewhere along the line the pearl was handed to him, but like so many that stand at the center when the blue light pops, the pearl drops into the grate on a street where you can still smell the last exhale of the cigarette that the guy put out as he got into the taxi.

The taxi that drove down the wet street, where most of the streetlights were still working, but that one keeps flickering, and no more taxis come and you knew none would. So you walk, and walk, until you get to that corner where there’s the place down a few stairs, and you wonder if you’d rather get out of the wet and the rain and have a drink, but then you would have to be with all the other people that wanted to get out of the rain or have a drink or just be with each other.

But, maybe it would just be better to smoke a joint there, in the rain by yourself, whether any cabs came or not, because how you get there is better than wondering why, or is it the other way ’round? And as you exhale the smoke and walk past the door, you remember that the pearl dropped into the grate. And now all the grates look the same, so even if you could reach your hand down there to try and get it, you can’t ever remember which one it fell into. So you just keep walking. Let someone else have the pearl or nobody else or maybe there just wasn’t ever one at all.

This post originally appeared on Popehat. View it here.


The USPTO Would Prefer Not to Follow the First Amendment

March 19, 2016

The USPTO is, apparently, a big Melville crowd.

In December, U.S. Court of Appeals for the Federal Circuit decided In re Tam, 2015 U.S. App. LEXIS 22593 (Fed. Cir. Dec. 22, 2015). In it, the Federal Circuit made a sweeping pronouncement that the First Amendment applies to trademark registrations, and that a long-criticized prohibition on “disparaging” trademarks could no longer stand. The portion of the trademark act that fell was Section 2(a) of the Lanham Act, 15 U.S.C.S. § 1052(a).

Then, the Department of Justice conceded that § 2(a) was no longer enforceable in light of In re Tam.

We do not believe that given the breadth of the Court’s Tam decision and in view of the totality of the Court’s reasoning there, that there is any longer a reasonable basis in this Court’s law for treating them differently… The reasoning of Tam requires the invalidation of § 2(a)’s prohibition against registering scandalous and immoral Trademarks as well.”

One might think then, for a moment, that the USPTO would stop relying on an unconstitutional provision, no? Well, time for a literature lesson:

In Herman Melville’s classic, Bartleby the Scrivener, an attorney finds frustration with his scrivener, Bartleby. Any time Bartleby is directed to perform a task, he replies with the classic refrain: “I would prefer not to.”

The first of many such exchanges continued thus:

“Prefer not to,” echoed I, rising in high excitement, and crossing the room with a stride. “What do you mean? Are you moon-struck? I want you to help me compare this sheet here – take it,” and I thrust it towards him.
“I would prefer not to,” said he. Herman Melville, Bartleby, the Scrivener: A Story of Wall Street 10 (Dover 1990) (1853).

Initially infuriated, but beguiled by Bartleby’s charmingly passive insolence, the narrator tolerates Bartleby’s masterfully eccentric defiance, but eventually fires him. Once fired, Bartleby’s behavior becomes stranger, and he refuses to leave the premises of his employer, who finds Bartleby’s stubbornness to be an immoveable object. Bartleby’s defiance, as effective as it is, eventually leads to his undoing. Bartleby’s preference leads to his imprisonment and starvation, as he finally encounters both men and forces of nature who are unmoved by his antics.

We have, at least for the moment, a government agency that fancies itself in the role of Bartleby. The USPTO has already been instructed by the Federal Circuit that Section 2(a) (at least as far as the “disparaging” portion of it) is unconstitutional, and the case law that the USPTO has relied upon to justify its bullshit standard under the “scandalous” portion is specifically overruled.

Rumored to be the new USPTO policy director

Rumored to be the new USPTO policy director

Nevertheless, the USPTO has essentially decided “we would prefer not to” follow the Constitution.

The USPTO continues to examine applications for compliance with the scandalousness and disparagement provisions in Section 2(a) according to the existing guidance in the Trademark Manual of Examining Procedure § 1203. While the constitutionality of these provisions remains in question and subject to potential Supreme Court review, for any new applications the USPTO will issue only advisory refusals on the grounds that a mark consists of or comprises scandalous, immoral, or disparaging matter under Section 2(a). If a mark’s registrability under these provisions in Section 2(a) is the only issue, the examining attorney will identify the reasons for the advisory refusal and suspend action on the application in the first Office action. For all applications, including those initially examined before the Federal Circuit’s decision in Tam, if the examining attorney made other requirements or refusals in the first Office action, action on the application will be suspended when the application is in condition for final action on those other requirements or refusals. Any suspension of an application based on the scandalousness provision of Section 2(a) will remain in place until the Federal Circuit issues a decision in Brunetti, after which the USPTO will re-evaluate the need for further suspension. Any suspension of an application based on the disparagement provision of Section 2(a) will remain in place until at least the last of the following occurs: (1) the period to petition for a writ of certiorari (including any extensions) in Tam expires without a petition being filed; (2) a petition for certiorari is denied; or (3) certiorari is granted and the U.S. Supreme Court issues a decision. (source)

Please note, I received this document from an intellectual property lawyers’ list serve, and I have not confirmed its authenticity. Nevertheless, the document properties say that the author is Christina J. Hieber, who does check out as an attorney with the USPTO’s office of the solicitor. (source)

So, remember folks – the Court of Appeals for the Federal Circuit told the USPTO that it was violating the Constitution. Their position? “We don’t care, we might appeal, and then again, we might not. But, until we are told that the courts really really mean it, the Constitution doesn’t matter.” And they think that the word “fuck” is “immoral” and “scandalous.”

You know what is “immoral” and “scandalous?” A petty little bureaucrat, or group thereof, deciding that they are above the Constitution, because… well, dirty words and all.

____

If you find the issue of morality and intellectual property rights of interest, I’d be delighted if you downloaded and read my law review article on the subject. See Marc J. Randazza Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights

This post originally appeared on Popehat. View it here.


Something Doesn’t Click Here

March 9, 2016

freedom from freedom A Missouri professor has gotten more than her share of negative pixels this year. I actually decided after my last column on her that I was done writing about her.

Even when she claimed that her now-infamous plea for “some muscle over here” was not the real her. I resisted.

“I try to remember that’s only one moment of a full day, and only one moment in a 12-year career,” she said. (source)

And after she hired a public relations team to give her a makeover, she now claims that the real reason she got fired is because she was the scapegoat for a racist patriarchy or something. (source)

Ok, fuck it, I’ll write about this idiot again.

From her recent statement:

In their decision to terminate my employment, the Curators bowed to conservative voices that seek to tarnish my stellar 12-year record at MU. Instead of disciplining me for conduct that does not “meet expectations for a University faculty member,” the Curators are punishing me for standing with students who have drawn attention to the issue of overt racism at the University of Missouri. While I have apologized on numerous occasions to numerous parties for my actions on October 10, 2015 and November 9, 2015, I will not apologize for my support of Black students who experience racism at the University of Missouri.

Yes, she expects you to believe that she got fired from a University for being too liberal.

The fact is, her actions on that one day are a great summary of her 12 year career, which is not “stellar.” It is utterly useless.

But, perhaps she is right. Perhaps terminating her isn’t fair. After all, she is merely a symptom of a problem, not a problem herself. The real disease is one that has infected higher education for at least a generation — political correctness, where identity politics and victim studies trump intelligence and qualifications. When that happens, again and again, what do you expect? How can you not wind up with “professors” like her?

The bats have come home to rest in the empty mental belfry of academia. In the short term, for the professor — as she was charged with assault for her misdeeds – something I disagreed with. Why? Because she was criminally charged for a mere legal trifle, even if it was an academic sin of the highest order. Firing her was the right thing to do, but what we need to realize is that she should not have been hired in the first place.

I majored in victim studies!

LET ME GET SOME VICTIM STUDIES MUSCLE OVER HERE!

Her CV indicates someone with a very shallow view of the marketplace of ideas, and someone who figured out how to game the system, but not someone who has much to offer when it comes to expanding knowledge, or just teaching students how to do anything useful.

Don’t get me wrong, hers was a brilliant path for anyone who wants to get hired in social science academia. Prove your “victim studies” cred and your CV goes to the top of the pile. And therein lies the problem.

Critiques of her CV fill pages of search engine results, but this one sums it up nicely.

So who is Melissa Click? She is an Assistant Professor at Missouri and has a PhD in communication from the University of Massachusetts. What was the subject of her dissertation? “It’s ‘a good thing’: The commodification of femininity, affluence and whiteness in the Martha Stewart phenomenon.” Obviously a work of serious scholarship. Prof. Click has a “Graduate Certificate in Advanced Feminist Studies,” too. So she is well qualified to teach your children. Something. (source)

Her “scholarship” includes Making monsters: Lady Gaga, fan identification, and social media, The romanticization of abstinence: Fan response to sexual restraint in the Twilight series and “Let’s Hug It Out, Bitch”: Audience response to hegemonic masculinity in Entourage.

She’s not quite finished with The trouble with Thomas: A closer look at the popular children’s Series. I presume that Thomas the Train is an agent of the Patriarchy, and railroads are a metaphor for rape culture, or something like that.*

What do you expect? She went to UMass/Amherst. I did too. Don’t get me wrong, I adore the place, donate to it, and will sing its praises until my vocal cords bleed. But, to say that it is a bit of a left-wing outlier is like saying that Donald Trump can be slightly abrasive at times. Just like I know when a dear friend also has a tendency to be an asshole, I am not blind to UMass’ flaws. One of them is that it often chooses political correctness over the promotion of knowledge.

While I graduated with a UMass journalism degree (which was one of the best moves ever), I spent a few semesters in a specialized major called “Social Thought and Political Economy,” (STPEC) which exists only at UMass. While there, I learned just how silly this brand of left-wing thought can be. I wish I had realized, at the time, that I was seeing the early stages of terminal academic stupidity.

To me, majoring in STPEC sounded great. In some ways it was. I fancied myself a little revolutionary. I wore Che Guevara t-shirts. I smoked weed and dropped acid and went on marches and building takeovers. It might have been 1987, but the way I saw it, it was the sixties, even though it was the eighties. And, I was the first brilliant 17 year old to discover Noam Chomsky and Howard Zinn. That’s a lot of college students, but this was particularly fashionable at UMass. And boy did I think I was cool.

UMass considered this to be "anti-semitic"

UMass considered this to be “anti-semitic”

Part of that juvenile thinking-I-am-cool was that I loved The Dead Kennedys (still do, but I admit that I play it at a much lower volume now). I put up a poster from them, depicted here — “Nazi Punks Fuck Off.” I quickly found myself up on “civility” charges. Not because the content of my door decoration had profanity in it, that was just fine. No, it was considered to be “Anti-Semitic.” When I mockingly explained the significance of the poster, the residence director explained to me that the intent of the message was irrelevant — it was how it made the anonymous complaining party feel. If they felt harassed by it, I was responsible for those emotions. I was let off with a “warning.”

I took it down, since the last thing I wanted to do was make someone feel like I didn’t like them because they were Jewish — even if they were an abject fucking idiot.

But that was when I realized that there was a real problem at my University. The way I saw it, I should have had every right to put up a “Hitler Rules, Fuck Yeah!” poster, if I wanted to. But, if I could not put up the opposite of that, without having committed thoughtcrime then how could we have any debate? Was the subject just off limits? More troublingly, I could express one opinion, but be held responsible for the precise opposite opinion because some fucking idiot didn’t get the message?

Later, I took a writing class — “Writing for Critical Consciousness.” It sounded like a great idea at the time, even if I would mock the shit out of my 19 year old self for taking it. We had a paper due, and we were allowed to work in teams. Fortunately, I had a cool partner in this project, and as we were trying to write this piece of shit, I took a toke off a bong and suggested that we just do a “word salad” of politically correct terms. We laughed our asses off as we tossed in words like “heteronormative” and “hegemonist.” For about an hour, we both just typed nonsense. Complete and utter bullshit. When we were finished, we cut and pasted it into a single document, and handed it in. We just didn’t give a shit.

Imagine how hard we laughed when we got an A on the paper.

This is the UMass that produced Ms. Click. That is the left-wing academia that offends even me… and I think I’m pretty far left. I believe in a 99% income tax bracket at some level. I’m all for socialized medicine. I support affirmative action (but only for descendants of slaves). I’m in favor of a huge estate tax. Hell, its a good thing I’m not in charge, because I’d probably declare martial law and drag the 400 richest Americans, parade them through the streets Chinese Cultural Revolution style, and then publicly execute them, seize everything they have, and redistribute it to the poor. Fine, I’m a lunatic. Don’t let me be dictator, and everything will be fine.

But just as I learned at UMass, “political correctness” can become a parody of itself. Sometimes, like when you just word-vomit the right vocabulary, you get an A in “writing for victim studies.” Other times, though, it can be scary — like when you’re 18 years old and facing a panel of stern looking people telling you that your record may have something in it that brands you an anti-semitic racist, when your intent was 180 degrees the other way.

But, if you want a job in academia, that is the path. Find a way that you’re a victim, wear it like VIP pass. Write about utter garbage, as long as it promotes the feminist-critical-race-theory-agenda. One by one, the “old white men” left academia, and it started getting infiltrated by these fucking morons. When they reached a critical mass, even those who completely disagree know that they need to stay quiet.

A few brave voices spoke up. For example, Professor Kenneth Lasson, penned two academic warnings – Political Correctness Askew: Excesses in the Pursuit of Minds and Manners, and Feminism Awry: Excesses in the Pursuit of Rights and Trifles. He warned that campuses were becoming places of political and social orthodoxy, and that in the end, we would all suffer. How right he was.

But, unfortunately, no one was ready to listen then. And now, it might be too late. After Click’s incident, more than a hundred of her colleagues decided that her non-apology, where she blamed everyone but herself was “good enough.”.

So now we have Melissa Click, the new and improved one, claiming essentially that she got fired because she’s black… or because she “stood with” black students. I don’t think anyone takes her story seriously. Well, let me correct that, her fellow victim-studies idiots will. And, unfortunately, they’re now running the asylum.

But, if academia actually meant anything, she would never have been hired in the first place. She should be sent back to weep over heteronormative cis-gendered oppression in Teletubbies, and leave teaching to adults. Are there any available? Can they get past the search committee?

I hope the fuck so.

This post originally appeared on Popehat. View it here.

______________

*Of course, my own law review articles have, on average, something like 10 downloads, so who the fuck am I to judge? MR. JUDGY PANTS, THAT’S WHO!


The Hulk Hogan Sex Tape Case

March 4, 2016

Marc Randazza was quoted in Business Insider today about the first amendment issues in the Hulk Hogan sex tape suit against Gawker Media.

Hulk Hogan’s sex tape is hardly the Pentagon Papers, but the outlet might have had a right to publish the clip even if it wasn’t in the best taste.

“I could see maybe posting a few seconds to show it’s authentic,” Randazza said. “But what was the journalistic necessity of the entire minute? I think that’s a hair that ought to be split.”

“Do journalistic outlets have a right to publish that?” continues Randazza. “My conclusion is this: God help us, but unfortunately yes. May [James] Madison have mercy on our souls for what we’ve done with the First Amendment.”

Read the rest on Business Insider.


Is the First Amendment safe from Donald Trump?

February 29, 2016

cnn trumpI write this as someone who was willing to vote for Trump. This gives me great pause….

Donald Trump has said a lot of strange things — some funny, some creepy, but none scarier than what he said on Friday: that if he is elected president, he will “open up our libel laws” to make it easier to sue the media and “win lots of money.” No matter what you may think about his other policy ideas, if he keeps this promise, we won’t be able to effectively express dissent against anything else he might want to do. We can fight any bad policy if we have a robust First Amendment.

Read the rest on CNN.

This post originally appeared on Popehat. View it here.


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