Archive for the ‘Free Speech’ Category


WHAT HAPPENED: Tam is a member of THE SLANTS, an Asian-American rock band who sound like your friend’s band who you always get invited to see live but never want to see live because they are not very good.  Tam sought to trademark the band’s name, but was denied by the U.S. Patent and Trade Office (“the PTO”) for being an antiquated racial slur.

WHY IS THIS BEFORE THE SUPREME COURT:  The PTO has a policy in place that denies trademark protection for offensive words, which is the basis under which the PTO denied Tam’s request.  The issue in this case is not whether the term THE SLANTS is offensive, but more broadly whether or not the PTO can constitutionally ban trademark terms based on their subjective standard for obscenity.  The lower court ruled in favor of THE SLANTS and held that the PTO’s policy is void as a matter of law.

WHAT ARE THE RAMIFICATIONS – It may seem obnoxious to point out that this only benefits rock bands with offensive names, but it is worth noting that there are more offensive band names than you may realize.  I have a friend who works for a very popular death metal record label, and his email signature would promote bands like DYING FETUS and album names like SULFUR AND SEMEN, so if you’re a hairy, stocky white dude who claims to worship Satan, this case could be for your benefit.  More generally, this case speaks to what the First Amendment actually gives you from the government.  On one hand, this is a government agency who is censoring private speech,; but more specifically, the government is not imprisoning THE SLANTS, but just not granting them additional commercial protection, which is an important distinction.  Most likely, that will be what this case turns on.

ROOT FOR LEE IF:  you don’t need to curse in your albums to sell records.

ROOT FOR TAM IF: you do, so f*** Will Smith, and f*** you too.



Digitally Divided Courtrooms

Posted: January 17, 2017 by Nazim in Free Speech, Standing, Technology


Many courtrooms, including the Supreme Court of the United States, do not allow patrons to bring their digital devices into it, unless a specific exception is made for a particular piece of evidence in trial, or a judge simply doesn’t care. Often, this is a decision of the judge or judges that run that particular show, but sometimes, this prohibition has been implemented into law. One Michigander (Michigoose? Michigame? Michigonian? If you know, please let me know…) decided to take the matter to the US Supreme Court.

Despite the fact that I mainly use my internet connection to view pictures of cats, the devices, I’m told, have an immense utility for people trying to actually get shit done.  Further, the prohibition is not only a literal limitation of free speech, but it also has a chilling effect: the fact that it’s allowed in some courts and not others makes one liable to be fined if one wanders into the wrong courtroom with a cell phone in yo pocket. It has an easily verifiable chilling effect: I always wonder what to do with my cell phone before heading into a courthouse that I’m not familiar with.

The motivation for the prohibition is, in part, to insure that there are no distractions. They really don’t want you to be listening to our podcast or checking our facebook feed during trial, you criminals, you. But there’s also an element of old-timey thinking at play here: Some judges just don’t want your fancy talking picture boxes on their lawn. Honestly, I’ve occasionally persuaded a judge to allow me to use a digital device when it would help the case move along, but it’s a pretty rare thing, when the rule is enforced.

The Michiganese … the Michigander … the petitioner from Michigan argues (pdf warning) argues that the blanket rules, which often cover not just the courtroom, but the entire courthouse, run afoul of the First, Fifth and Fourtteenth Amendments. Astutely, he also points out that hearing the matter would resolve a split between different circuits. Some have acknowledged that this might be a true chill of free speech, while others point out that the restriction is not serious enough to cause actual harm, since people are free to take notes and sometimes record audio (which can be then put to video). As if I would ever take notes…


WHAT HAPPENED:  North Carolina passed a law that made it a felony for sex offenders to access a banned list of websites.  Those websites included social media sites like Facebook and Youtube, but also news media sites like the New York Times.  The purpose behind the law was to prevent sex offenders from gaining access to minors through the internet via social media or comment sections.  The defendant, who was on the sex offender registry, was arrested after posting a celebratory message on Facebook following a victory in traffic court, which makes this a wild case of government revenge when you think very deeply about it.

WHY IS THIS BEFORE THE SUPREME COURT:  As you are likely aware, the government is not permitted to prevent your access to news or your ability to speak unless there are very compelling reasons to do so.  While protecting children from sex offenders is obviously a compelling reason, there is also the question of whether or not this law is properly tailored to that concern, meaning whether the law unduly harms or burdens speech outside of the stated goals.  In other words, whether it makes sense to ban access to the Wall Street Journal because you are concerned that sex offenders are going to access children in the comment section of an article about federal interest rates.

WHAT ARE THE RAMIFICATIONS – While this case likely operates in its own little bubble (in that it really only affects the viability of sex offenders on the internet and government officials who want to police sex offenders on the internet), it poses an interesting question about free speech and government regulation.  The lower decision compared this case to U.S. v. O’Brien, in which the Supreme Court said that the government could punish you for burning your draft card because there were compelling reasons supporting the government’s action outside of preventing speech.  While this law doesn’t feel totally on point with that case, it also doesn’t fit squarely in any of the other exceptions to the First Amendment either, making this a case where the Court could either try to jam this into existing precedent or create something new altogether.

ROOT FOR PACKINGHAM IF:  you are a staunch opponent of government infringement on speech, OR a sex offender who likes looking at “damn Daniel” videos on YouTube.

ROOT FOR NORTH CAROLINA IF:  you are so terrified of sex offenders that you are willing to allow the government to make unilateral bans on news, speech and communication.

PREDICTION:  Packingham 6-2 on grounds that the registry of websites is too broad.



Since we’re discussing things on the internet, I thought we should get one thing out of the way: nobody can reliably distinguish sarcasm on the internet. This study found that not even the closest friends were capable of accurately evaluating the emotional tone of their friends’ emails. To the contrary, they were no better at it than a random person who had never met the writer. So, while we all frequently assume the smart, intelligent people we socialize with and digitally hang out with will know when we’re being sarcastic, they don’t. So let’s keep the sarcasm for meatspace.

Congress Extends Free Speech Right!

Posted: September 19, 2016 by Nazim in Free Speech


Since our nation’s inception, we’ve enshrined our ability to complain as a fundamental right that the government cannot deny, except when it can. Congress, in its infinite wisdom, is extending this right to the private sector: out ability to review stuff on Yelp or Amazon or anywhere else without fear of reprisal will (hopefully) soon be protected by federal law.

Not only do many terms of service expressly forbid bad reviews, companies have even sued over bad reviews. Plenty of detail on the Consumerist. And a small nod to Congress for doing a good thing: the bill passed the House last week, and it normally would proceed to the Senate, but the Senate already passed a similar version of the same bill last year, so it just has to go through a reconciliation committee which should merge the two bills, and send it off to the president’s desk to be signed into law.


The goals of public discourse don’t include yelling and insults, but frequently appear to. Here’s an interesting attempt to steer away from that.

Right? Right? I mean, we know the fantastic lies they tell, but it would be crazy to just make everything a congressperson said simply on the record, and make them liable for perjury if they said something false.


WHAT HAPPENED:  The U.S. Patent and Trademark Office has a rule that prohibits trademarking any name that “disparages” any living or dead individual, belief or national symbol.  Two such entities that have had their trademarks rescinded by Federal Circuit Courts include THE SLANTS (the rock band shown above) and the WASHINGTON REDSKINS (image not shown as it is too offensive).

WHY IS THIS BEFORE ANY COURT:  The argument goes that the PTO’s denial of trademark protection violates the First Amendment.  For the Slants, their use of the term represents reclaiming offensive terminology.  For the Redskins, their use of the term represents sticking with racist words because it costs too much to change it.

WHAT WAS THE RULING:  The Slants won, and the Redskins lost.  The Redskins have now petitioned the Supreme Court to get priority review of their claim since they lost at the lower level.

WHAT ARE THE RAMIFICATIONS:  At the heart of it, the concern in this case is whether you can get priority use of an offensive term.  If that applies to you, you probably stink.

WILL THIS GO BEFORE THE SUPREME COURT:  More likely than not this will have some life at the Supreme Court next term.  There is a split in jurisdictions in regard to whether this rule is Constitutional or not, so that needs some clarity.  One interesting issue would be whether or not the Court makes a factual distinction between these two cases, or makes a rule that applies to all similar situations across the board.

WHAT HAPPENED:  Plaintiff is a police officer who was disciplined by his job for engaging in political speech.  The speech in question was Plaintiff helping his mother pick up a political sign for her home, when police officers in this City were told not to take any action related to the upcoming political campaign.  When confronted by his job, Plaintiff argued that he was not engaged in political speech but just helping his mom.  This is a perfectly good argument, That is until….

WHY IS THIS BEFORE THE SUPREME COURT:  Lawyers get involved and Plaintiff sues for violating his civil rights through his on-the-ob discipline.  Whereas Plaintiff first argues that he is not engaged in speech to avoid getting punished at work, at trial Plaintiff argues that the punishment violates his Free Speech rights under the First Amendment.  After some general tomfoolery with the trial court level, Plaintiff’s case is dismissed before trial, as the Court held that no reasonable jury could find that defendant engaged in political speech.  That is until….

WHAT ARE THE RAMIFICATIONS OF THE DECISION: You consider that Plaintiff’s job certainly believed he was engaged in political speech which started this whole mess to begin with.  On a specific level, this case has few ramifications, as the nuances of each side flip-flopping their use of Free Speech as a sword and shield will probably render a decision in this case that is uninteresting and unrelated to political speech and campaign support from government officials.  The more interesting argument is whether or not the government’s mistaken belief that someone engaged in Free Speech should take precedence over what the person speaking actually intended.  If all the stars align, you could get an interesting decision on whether the Free Speech is there to protect the person making the speech or to prevent the government from banning the speech, which would tip the hands of the Court when it comes to this somewhat decisive issue.  That’s probably not going to happen in the final decisions, but an interesting thing to look for in the oral arguments.

WHAT IS THE RULING:  This case is not yet decided.

YOU SHOULD ROOT FOR HEFFERNAN:  If your view of the First Amendment includes protecting bad-boy police officers who don’t “play by the rules” and don’t “fit within the system”, like Ole’ Farva from Super Troopers.

YOU SHOULD ROOT FOR THE CITY OF PATERSON:  If your view of the First Amendment does not include giving free passes to bad-boy police officers who don’t “follow direction” and “obey orders”, like Ole’ Farva from Super Troopers.

Williams-Yulee v. Florida BAR

Posted: May 17, 2015 by beguide in case summaries, Free Speech


WHAT HAPPENED:  Williams-Yulee is a Florida Judge who was sanctioned by the Florida Bar for personally soliciting campaign funds during an election.  Williams-Yulee claimed that the sanctions brought down by the Florida Bar were against the First Amendment of the Constitution, since this was a prohibition against speech and campaign financing.  The Florida Bar argued that Williams-Yulee was permitted to solicit funds but could not do so directly.

WHY IS THIS BEFORE THE SUPREME COURT: Anytime the government stops someone from saying something, the Court applies a strict scrutiny analysis, in which the Court determines whether or not there is a compelling government interest in prohibiting campaign solicitations by the judge, and then whether Florida’s regulations are narrowly tailored to accomplish that goal.

WHAT WAS THE RULING: The Court ruled 5-4 in favor of the Florida Bar.  Judge Roberts wrote the majority opinion which stated that the ruling served a compelling interest of ensuring that Judges appeared impartial to the general public, and that the regulation was narrowly tailored to that goal.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION: The decision would stand to either benefit or hinder police work in lieu of current developments in genetics and DNA testing. As science continues to develop regarding our ability to use DNA in connecting or exonerating accused defendants, the King case stood to balance the 4th Amendment against an effective way of linking defendants to crimes.  Other justices wrote opinions arguing that the test was wrong but the result was right, the test was right but the result was wrong, and just general nonsense showing that the Court has very few consistent rules when it comes to campaign financing.

THE GOOD GUYS WON IF YOU: you hate political ads that interrupt your television.

THE BAD GUYS WON IF YOU: you create the ads that interrupt television, in which case, you stink.

WHO WAS RIGHT: This decision was released before the podcast, but even still, Brett and Nazim were totally on point.