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Why it matters: On June 19, 2017, the Supreme Court held in Matal v. Tam that Section 2(a) of the Lanham (Trademark) Actcommonly known as the disparagement clauseviolates the First Amendment.

Detailed discussion: On June 19, 2017, the Supreme Court held in Matal v. Tam that Section 2(a) of the Lanham (Trademark) Act violates the First Amendment. Section 2(a), commonly known as the disparagement clause, reads in relevant part that [n]o trademark shall be refused registrationon account of its nature unless it[c]onsists ofmatter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.

Factual background and procedural history: We last discussed the Tam case in depth in our June 2016 newsletter under Supreme Court Asked to Weigh-In on Disparaging Trademarks Issue. Briefly, the underlying case involved an individual named Simon Shiao Tam (Tam), an activist and the frontman for an Oregon-based rock band, who had been attempting to register the trademark The Slants (the bands proposed name) with the U.S. Patent and Trademark Office (PTO) since 2011. Tams stated reason in the trademark application for wanting to name his band The Slants was to reclaim and take ownership of Asian stereotypes. Citing Section 2(a) of the Lanham Act, the examiner refused to register the mark because he found it disparaging to people of Asian descent and felt that a substantial composite of Asians would find the mark offensive. The Trademark Trial and Appeal Board (TTAB) affirmed, and Tam appealed to the Federal Circuit.

The Federal Circuit also initially affirmed, but then sua sponte called for en banc review of the constitutionality issue. In December 2015, the en banc panel reversed, vacating and remanding the case back to the TTAB, holding that:

[t]he government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of 2(a) is unconstitutional.

The PTO filed a petition for writ of certiorari with the Supreme Court in April 2016, which agreed to consider the issue and heard oral argument on Jan. 18, 2017.

Supreme Court opinion: In a unanimous opinion written by Justice Samuel Alito, the Court affirmed the Federal Circuits ruling and held that the Section 2(a) disparagement clause violates the Free Speech Clause of the First Amendment because it offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

In reaching this holding, the Court considered and rejected arguments raised by the PTO that would either eliminate any First Amendment protection or result in highly permissive rational-basis review.

The first of these arguments was the PTOs contention that trademarks are government speech, not private speech, and thus not subject to the restrictions that the First Amendment puts on private speech. The Court rejected this argument, stating that the PTO does not dream up the proposed trademarks, nor does it edit the ones that are submitted for registration. The PTO examiner only registers or, if a proposed trademark falls within one of the statutory exceptions, refuses to register the trademark, and it is thus far-fetched to suggest that the content of a registered mark is government speech. In addition, the Court said that the mere registration of a mark does not convert the mark into government speech (if it did, the Federal Government is babbling prodigiously and incoherently). Moreover, the Court said that [t]he PTO has made it clear that registration does not constitute approval of a mark. The Court concluded on this point that [h]olding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine and thus [t]rademarks are private, not government, speech.

The second argument put forth by the PTO was that trademarks are a form of government subsidy, pointing to Supreme Court precedent upholding the constitutionality of government programs that subsidized speech expressing a particular viewpoint. The Court rejected this argument as well, stating that it brought up a notoriously tricky question of constitutional law, but the Court had no difficulty distinguishing the cases cited by the PTO from the one before it.

The Court next considered and rejected the PTOs third argument that the constitutionality of the disparagement clause should be tested under a new government-program doctrine because the disparagement clause cannot be saved by analyzing it as a type of government program in which some content- and speaker-based restrictions are permitted.

Finally, the Court addressed the PTOs argument that trademarks are commercial speech and are thus subject to the relaxed scrutiny. The Court rejected this argument, stating that, even if that were the case, the disparagement clause could not withstand the relaxed scrutiny afforded commercial speech because it is not narrowly drawn nor does it serve a substantial interest. The Court concluded, If affixing the commercial label permits the suppression of any speech that may lead to political or social volatility, free speech would be endangered.

Justice Anthony Kennedy (joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan) authored a separate concurrence in which he explained in greater detail why the First Amendments protections against viewpoint discrimination apply to the trademark here and render unnecessary any extended treatment of the other arguments raised by the parties:

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the governments benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

All eyes presumably now turn to Pro-Football, Inc. v. Blackhorse, the long-running litigation involving the cancellation by the TTAB and lower court of the six REDSKINS marks in reliance on the disparagement clause, the latest iteration of which had been put on hold in the Fourth Circuit pending resolution of the Tam case by the Supreme Court. The owners of the REDSKINS marks have been claiming victory and are assuming that the Tam case ensures that the Fourth Circuit will reinstate their marks. We will keep an eye on this litigation and report back.

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Supreme Court: Trademark Disparagement Clause Violates First Amendment - Lexology (registration)

Cloudflare and Credo Mobile today lost their fight to speak publicly about the National Security Letters they and other tech companies receive, which demand user data and frequently forbid companies from ever disclosing the demands to their users.

The two companies received NSLs from the FBI in 2011 and 2013, requiring them to secretly disclose account information.

The Electronic Frontier Foundation, representing web performance company Cloudflare and mobile network Credo, said the gag orders accompanying the NSLs violated the companies rights to free speech. But the 9th Circuit Court of Appeals ruled today that this nondisclosure requirement does not run afoul of the First Amendment.

The ruling is a major upset for Cloudflare and Credo, as well as for larger tech companies that have begun disclosing NSLs over the past year. Companies that receive NSLs are usually restricted from discussing them for yearssometimes foreverand, if they disclose them in transparency reports, they may only do so in ranges of 500.

The EFF argued that companies with millions of users should be allowed to disclose the specific number of NSLs they receive and to mention their experiences receiving NSLs when communicating with customers or lobbying the government. (While lobbying against NSLs in 2014, Cloudflares in-house counsel was told by a dismissive Capitol Hill staffer that it was impossible for Cloudflare to receive an NSL, and because of the gag order, he was unable to point out that Cloudflare had already received several of the letters.)

Id be lying if I didnt say this is a real setback, EFF staff attorney Andrew Crocker told Gizmodo. But the trend is going the other way. Ive seen a lot of courts questioning these blanket indefinite gag orders.

Twitter, which is also challenging NSL gag orders in court, recently secured a promising ruling from a district court judge that suggests Twitters reporting of NSLs in narrower ranges than 500 could be protected under the First Amendment.

The 9th Circuit, however, was more dismissive of the reporting bands: We decline the recipients invitation to quibble with the particular ranges selected by Congress, the court wrote.

In 2017, its really unsupportable to not give internet companies like my clients a full First Amendment set of rights that they would give to any other speaker, Crocker said, likening internet service providers like Cloudflare to traditional publishers like newspapers. The implicit assumption in this ruling is that they dont have this set of rights.

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Companies Don't Have a First Amendment Right to Talk About National Security Letters, Court Rules - Gizmodo

Conservative Review

Hey, media! Blocked by Trump? Follow him here Conservative Review A lawsuit was filed last week by the Knight First Amendment Institution, arguing that Trump's Twitter feed is a public forum. Rebecca Buckwalter-Poza is a commentator in a social justice magazine, an employee of the Center for American Progress ... and more »

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Hey, media! Blocked by Trump? Follow him here - Conservative Review

A federal appeals court has issued a ruling favorable to citizen reporters.

There were two cases in the mix. The first involved Amanda Geraci, who monitors police in Philadelphia at protests or demonstrations, and records them.

Rutherford Institutefounder John Whitehead, a civil liberties attorney, describes a 2012 incident.

She attended a protest at a fracking convention in Philadelphia when she saw police arrest one of the protesters, he tells OnewNewNow. Amanda moved to a spot where she could better observe and videotape the incident."

That's when a police officer grabbed her and threw her against a pillar, preventing her from filming the arrest.

In a second incident, Temple University student Richard Fields recorded 20 police officers outside a house where a party was being held. He was arrested and handcuffed, and his belongings were confiscated.A criminal charge was later dropped.

The cases finally made their way to a federal appeals court.

The 3rd Circuit Court of Appealsdeclaredthat the right to record police is not limited," reports Whitehead, "and noted that other courts had affirmed the First Amendment right to collect information on government activities. So you can record the police."

He says it's a good First Amendment ruling since it allows the public to record authorities as long as the act doesn't impede an investigation.

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Whitehead: First Amendment won in court - One News Now - OneNewsNow

Don Jr. Photo: Jim Watson/AFP/Getty Images

As shoe after shoe after shoe keeps dropping about the Trump Tower meeting Donald Trump Jr., Jared Kushner, and Paul Manafort had with a Russian lawyer and other questionable intermediaries, there has been a quiet but significant effort by prominent legal minds to defend, or at least be skeptical of, the whole affair. The thrust of these counterarguments is that the main characters did nothing wrong because the law simply doesnt penalize anything that happened at the meeting.

The defenses run the gamut: The Trump team couldnt have broken campaign-finance laws because seeking and receiving damning materials on a political adversary is what campaigns do all the time, so federal law doesnt apply. Or, if the law does reach what transpired at the meeting, the promised dirt on Hillary Clinton isnt the type of in-kind contribution or thing of value that federal law forbids foreign nationals from making. Or, if the damaging information does count as an illegal campaign contribution from a foreign national, the penalties would only be civil in nature which means Robert Mueller, the Russia special counsel, cant just prosecute Trump Jr. or his associates over what happened at that fateful June 2016 gathering.

By far the most intriguing of all these defenses is the suggestion, advanced by First Amendment expert and UCLA law professor Eugene Volokh, that Trump Jr. and crew were merely exercising their constitutional right to solicit and receive a campaign boost from Natalia Veselnitskaya, the Kremlin-linked attorney who requested the meeting. And that she may also have been acting within her rights to share the Clinton dirt with Trumps inner circle. As if theres somehow a free-standing, free-speech right to exchange opposition research, no matter the nationality of the source. And the Constitution would suffer if we criminalize these acts.

Volokhs arguments and hypotheticals are thoughtful, compelling even: If the Clinton campaign heard that Mar-a-Lago was employing illegal immigrants in Florida and staffers went down to interview the workers, that would be a crime, he writes as one of his examples. A Slovakian student temporarily in the U.S., he writes in another, would similarly be forbidden from sharing potentially explosive information about Trumps dealings in her home country. These and other scenarios are meant to illustrate how the federal ban on foreign nationals making election-related contributions including anything of value to a campaign, which would encompass the Clinton dirt would sweep far too broadly. And when a ban lends itself to such a substantially broad reading, Volokh explains, that means the ban itself is unconstitutional on its face.

But Adav Noti, an attorney with Campaign Legal Center, isnt convinced. His organization filed a complaint on Thursday with the Federal Election Commission and the Department of Justice alleging that the Trump campaign effectively solicited an illegal campaign contribution by procuring the incriminating Clinton evidence from Veselnitskaya. Noti told me in an interview that most of the hypos Volokh laid out in his article arent covered by the statute because the law already contains an exception for volunteer services to a campaign information that is offered voluntarily and that you otherwise cant ascribe value to.

But opposition research by a person flying in from Moscow at no cost to the campaign that the campaign actively sought can indeed be very valuable. And, if its part of a larger, coordinated effort by a foreign power to sway an American election, a scheme to obtain it would be largely distinguishable from, say, undocumented workers dishing to the Clinton camp for free on shoddy working conditions at a Trump property.

Bob Bauer, an election-law expert who has written extensively on the campaign-finance implications of Trumps flirtations with Russia, acknowledged in a Friday post on the blog Just Security how the federal ban on foreign-national contributions might run into First Amendment problems if the right facts come along. But were not dealing with those facts right now. In his view, everything that has come out from the Trump campaign vis--vis Russia is an entirely different animal. A court would likely go out of its way to uphold the law in a case where, as alleged against the Trump campaign, a candidate and his organization enters into a systematic understanding with a foreign government to assist its bid to win the presidency, Bauer wrote.

In other words, what weve seen so far in the recent onslaught of revelations about Trump Jr. and his wish to get an assist from Russia is analogous to the kind of conduct that courts have already said falls outside the scope of the First Amendment. In Bluman v. FEC, a case Noti litigated and won, a three-judge district court reaffirmed the principle that prohibiting foreign nationals from spending money in the electoral process is perfectly consistent with our constitutional ideals. The court said:

It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.

That was written by U.S. Circuit Judge Brett Kavanaugh, a conservative the Trump administration has been eyeing for a promotion to the Supreme Court. The high court, for its part, didnt even bother hearing an appeal over the case; it just affirmed the ruling summarily with no dissenting opinions. All of which suggests that other judges would follow suit if presented with the Trump Tower scenario: a meeting where no actual money may have changed hands, but where something more nefarious, coordinated, and potentially criminal may have taken place. Theres yet more to come.

Courts have a way of salvaging perfectly constitutional laws if they have to, limiting their analysis to the specific fact patterns before them. Since the documented Russian connections to the Trump campaign is unlike anything this country has seen, its easy to see how the First Amendment wouldnt stand as an obstacle if it were shown that there was a coordinated attempt to strike at the core of American self-government.

A scorecard on how far Trump has advanced Russian interests (whether knowingly or unknowingly), from easing sanctions to Syria.

The rise and meaning of an ubiquitous term of abuse.

The Trump administration gets Orwellian in its efforts to repeal Obamacare.

The agency wasnt even protecting the presidents son at the time.

Its unusual for a new president to be this widely disliked.

The courts have already been pretty consistent on this issue of foreign citizens not being able to participate in Americas self-government.

McCain is expected to recover, but the same cant be said for the GOPs haphazard efforts to repeal and replace Obamacare.

And, yes, hes going to write about his experience dealing with Trump.

Looks like the Trump campaign thought there was something in that nothingburger.

And yet, it still might pass in the next few days.

The new plan would dramatically expand where and when the government could target immigrants for deportations which bypass immigration courts.

Voters are worried about his voter-fraud commissions attempt to gather information on them.

Shes totally open, the future president clearly says to the young pop singer in 2013. But what else?

Most of Trumps Christian right allies dont bother to take his own slight religious pretensions very seriously. A new book apparently will.

Trump may be pushed by a lawsuit to keep his 2016 promise to kill DACA and deport Dreamers or they could become a pawn for nativists in Congress.

One golfer said his attendance would be a debacle, but Trump doesnt care.

At this point it would take a strange coincidence for hacking not to have been discussed.

He ordered the government not to enforce the seemingly arbitrary restrictions on which relatives can enter the country.

Soon Republican centrists will have to decide if big insurance losses due to Medicaid cuts are okay after all.

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Knocking Down the Best Argument in Defense of Trump Jr. - NYMag - New York Magazine