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. Berkeley’s decision to silence Ann Coulter

April 27, 2017

See Dear Berkeley: 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.

Berkley’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.


Free Speech and Discrimination Redux

December 28, 2015

by Jay Marshall Wolman

Last week, I wrote about a potential implication from In re: Tam, based upon the hypothetical from a dissenting judge about a business calling itself “Spics Not Welcome”.  There is a significant tension in the law between freedom of speech, which includes the right to offend, and anti-discrimination laws.

The fine folks at the New York City Commission on Human Rights have decided to push the envelope, issuing guidelines for employers and landlords regarding transgendered individuals.  Among the well-intentioned guidelines are those that prohibit an employer or landlord from using a person’s biological gender instead of the person’s preferred gender.  Within the confines of the law and the powers of the Commission, it seems to be a natural progression from prohibiting treatment of a biological woman differently because she is not male to treating a male differently because he is a biological woman.  This progression has focused on the rights of the employee and tenant.

However, landlords and employers have rights, including First Amendment rights.  We may talk about the speech/conduct distinction, but it is a very much a speech regulation when we are specifically talking about what specific words a landlord or employer is allowed to use.

It also prohibits gender-specific dress codes and, in effect, single gender bathrooms.  Some businesses may take issue with these regulations as well, perhaps a Hobby Lobby or Chik-fil-a.  Looking at Boy Scouts of America v. Dale and more recent cases such as Hobby Lobby (though not decided on 1st Amendment grounds) or Citizens United, freedoms of belief and association, including at the corporate level,  are likely to swallow the entirety of the NYC guidelines.  Gender expression is a form of speech, and government isn’t supposed to be in the business of deciding which content is preferred.

If there is substantial litigation over these new guidelines, they may set the stage for greater scrutiny of all speech regulations under the guise of anti-discrimination.

 


Spics Not Welcome

December 22, 2015

by Jay Marshall Wolman

By now, you have probably heard that Simon Tam won his case before the Federal Circuit regarding his attempt to register a trademark for his band “The Slants”.  (Disclosure: Randazza Legal Group represented the First Amendment Lawyers’ Association as amicus curiae in that case and was recently co-counsel with Mr. Tam’s lawyers, Ron Coleman and Joel MacMull, on another matter.)  In short, the Federal Circuit Court of Appeals found that the denial of registration under the Lanham Act’s prohibition of the registration of “disparaging” marks did not survive strict or intermediate scrutiny under First Amendment analysis.  I leave it to others to provide an analysis of the holding.

I’m more interested in something that appears on page 9 (page 107 of the PDF) of the dissent of Circuit Judge Reyna.  In it, Judge Reyna (who happens to have been a former president of the Hispanic National Bar Association) offers up the following as a permissive government regulation of disparaging speech:  a restaurant named “SPICS NOT WELCOME”.  Judge Reyna notes that Title VIII of the Civil Rights Act of 1964 bans advertising with a discriminatory preference and discusses how (the better known) Title VII bans harassing speech in the workplace.  He then writes that the government interest in avoiding disparagement, such as that with demographically discriminatory content, outweighs the burdens on speech.

With Judge Reyna in the dissent, something to consider is what would be the implications of a restaurant named “SPICS NOT WELCOME”.  Prof. Eugene Volokh has explored the conflict between First Amendment law and harassment law.  Judge Reyna’s example sets it up nicely.  Let’s assume an entrepreneur named a restaurant “Spics Not Welcome” and registered that trademark.  Let’s also assume that the restaurant does not actually discriminate against persons of Hispanic origin (for the hypothetical, let’s presume the restauranteur hates spices, but has a spelling problem and forgot the “e”).

Presumably, the name would dissuade both potential consumers and job applicants of Hispanic origin and would be deemed to violate the Civil Rights Act under present jurisprudence.  So, on the one hand, you can register and use a disparaging mark under the First Amendment, but on the other, it is prohibited as being discriminatory.  Which one stands?  And, even though the trademark matter was decided on constitutional grounds, that does not mean that the government interest analysis is the same.  Of course, it may be argued that it is the same analysis and down goes harassment law.

If not, can you have a registered trademark you are not allowed to use?  Does trademark law trump civil rights law or vice versa?  Since the Lanham Act predates the Civil Rights Act, perhaps the latter trumps.  I’ll have to look into instances where an offensive mark was deemed unlawful harassment and update this post.

Now, I don’t recommend naming a restaurant “Spics Not Welcome”.  But what if The Slants needs a new drummer–can a non-asian apply?  Would they feel harassed or precluded by the name?  It’ll be interesting to see how the law develops.