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.


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.

 

 

 


A Slanted View of Trademarks and Free Speech

November 4, 2015

by Jay Marshall Wolman

Free speech and the Lanham Act (the federal law dealing with trademarks) has been a hot topic of late.  There are two high profile matters in separate courts of appeals challenging the constitutionality of Section 2(a), which prohibits the registration of disparaging marks.

In the Federal Circuit is the matter In re: Tam, in which the band, The Slants, is challenging the refusal of the registration of the mark in its name.  Their brief can be found here.  Marc previously commented on that case here. (Disclaimer: Marc wrote a brief for the First Amendment Lawyers’ Association. That brief is here. You may also want to read Marc’s infamous “Fuck” brief here. The viewpoints expressed herein are my own and should not be construed as those of Marc Randazza, Randazza Legal Group, or the First Amendment Lawyers’ Association.)

And, in the Fourth Circuit, is the matter of Pro-Football, Inc. v. Blackhorse, in which the Washington Redskins are challenging the cancellation of their mark.  Their brief can be found here.

The Slants and the Redskins are both arguing, among other things, that the ban on registration of disparaging marks is an unconstitutional restriction of speech.  It is not a content-neutral regulation and they claim that the denial or cancellation burdens their commercial speech, when compared to others, since they cannot enforce the marks to the same extent.  They claim it is not government sanctioned speech, per se, simply by registering the mark.  The Redskins brief specifically  highlights other offensive (it believes) marks that have passed muster and no one believes that the registration=government speech.  It specifically distinguishes the Texas License Plate case, Walker v. Texas Division, Sons of Confederate Veterans, Inc.,135 S. Ct. 2239 (2015), noting that trademark registrations, unlike license plates, are not generally known to be vehicles for government speech.

Because these are pending before different circuits, it is well possible for there to be a circuit split that might ultimately warrant Supreme Court review.

Omitted from discussion, and worth noting, is that, in essence, trademarks actually limit free speech.  Prof. Lisa Ramsey argues as much here.  Conceptually, a trademark registration means that my right to speak your mark is limited.  Hypothetically, it means that in my sporting goods store that caters to British clients, I cannot probably label American baseballs as Yankee balls; it means that I cannot probably market a device that lets a Microsoft and Apple computer talk to each other as a “Surface to Air Missile”.  And descriptive marks are even more limiting–only Fox News is allowed to call itself “Fair and Balanced”.

When thinking about these together, the Slants and Redskins are arguing that their speech rights are being limited because they don’t have the same right to limit the speech of others as others might have.  Normally, the argument is that registration of the mark limits speech.  Here, they argue that denial of registration limits speech.  They may well be right in the end, but this is definitely one of those interesting competing rights cases.


Wait a Cotton Pickin’ Minute: Free Speech and Employment

November 2, 2015

by Jay Marshall Wolman

As an employment lawyer who works for a 1st Amendment firm, I try to keep up with developments in both areas.  Sometimes, they overlap, as they did in my Twitter feed recently.  (Blatant self-promotion, feel free to follow me @wolmanj ).

In Trusz v.UBS Realty Investors, LLC, the Connecticut Supreme Court was asked to consider how it should evaluate statements by employees and retaliation claims.  As noted by the court in Trusz, Connecticut employees (private, as well as public) have broad free speech rights under the Connecticut constitution:

This court previously has held that because, unlike the first amendment to the federal constitution: (1) article first, § 4, of the Connecticut constitution includes language protecting free speech ‘‘on all subjects’’; (2) article first, § 5, of the Connecticut constitution uses the word ‘‘ever,’’ thereby providing ‘‘additional emphasis to the force of the provision’’; (internal quotation marks omitted) State v. Linares, 232 Conn. 345, 381, 655 A.2d 737 (1995); and (3) article first, § 14, of the Connecticut constitution provides a right to seek redress for grievances by way of ‘‘remonstrance,’’ and therefore ‘‘sets forth free speech rights more emphatically than its federal counterpart’’; (internal quotation marks omitted) State v. Linares, supra, 381; these textual differences ‘‘warrant an interpretation separate and distinct from that of the first amendment.’’ (Internal quotation marks omitted.)Id. The text of article first, § 4, of the Connecticut constitution providing that citizens of this state are free to speak ‘‘on all subjects, being responsible for the abuse of that liberty’’; (emphasis added); is particularly relevant in the present case. This broad and encompassing language supports the conclusion that the state constitution protects employee speech in the public workplace on the widest possible range of topics, as long as the speech does not undermine the employer’s legitimate interest in maintaining discipline, harmony and efficiency in the workplace.

Daniel Schwartz, over at Connecticut Employment Law Blog, has a terrific analysis of the decision itself.  The Trusz case came after the Garcetti case, which addressed public employee rights and held, as Dan summarizes, “workplace speech that relates to an employee’s official duties is not protected.”  Trusz ignored that limit and the money quote is:

If an employee’s job related speech reflects a mere policy difference with the employer, it is not protected. It is only when the employee’s speech is on a matter of public concern and implicates an employer’s official dishonesty…other serious wrongdoing, or threats to health and safety that the speech trumps the employer’s right to control its own employees and policies.

Not all speech is treated equally.  It must be of public concern and implicate dishonesty, wrongdoing, or threats arising from the employer.  Other speech remains unprotected.  Of course, this really only matters for Connecticut; the rest of the country is unaffected and public employees are governed by Garcetti.

The other matter that was prominently featured in my feed was the firing of Ericka Escalante by Isagenix.  Ms. Escalante posted a photograph of herself picking cotton with the caption “Our inner Nigger came out today”.  As I grew up watching Looney Tunes, I was well familiar with the term “cotton pickin'”, though apparently there is a distinction:  cotton pickin’ itself is not racist, but calling someone a “cotton picker” is.  Isagenix, as a private employer, was fully within its right to terminate Ms. Escalante for her off-the-clock speech on a matter not of public concern. (Also, Isagenix should be commended for paying interns and avoiding the scrutiny of unpaid internships.)

Still, an employer like Isagenix should be sure it conducts a proper investigation, especially if it is a Connecticut employer.  What if the subtext were that Latino interns were treated or paid worse than African-American interns, and Ms. Escalante’s posting was a complaint that, were she African-American, she would be treated better?  Would the racist nature (use of “Nigger” and cotton picker imagery) override her complaint about racism in the workplace (a matter of public concern and serious wrongdoing)?  (Additionally, if it is on behalf of a group of employees, might it also be protected by section 7 of the NLRA?)  Here, there do not appear to be those issues, but employers should still satisfy themselves that they are not facing a suit merely by doing what internet denizens demand or, at least, weigh the risks.