Category: General Law


Semantic or Not?

Here’s a question that I’ve wondered about for a long time.  If you ask people what party Hillary Clinton belongs to, many say “the Democratic Party.”  Many others, though, say “the Democrat Party.”  Why is that?  Typically, I think that only Republicans use the latter term.  Is there some purpose there, such as denying that Democrats have a monopoly on being democratic?  Or is more like a dialect?


What the Spokeo argument tells us about the future of information privacy law

This is a guest post. The views expressed are the author’s own and should not be attributed to anyone else.  

Yesterday’s oral argument in Spokeo v. Robins revealed a Court divided on the proper scope and application of standing doctrine. There was one point of agreement amongst the justices, however, with particular relevance to the future of information privacy law.

With the possible exception of Justice Sotomayor, no one on the Court seems ready to hold that a mere violation of the FCRA’s statutory requirements could confer standing on a plaintiff. Even Justice Kagan, who came out firmly in support of Robins, was hesitant to concede that a bare violation of the FCRA’s procedural requirements, such as the requirement that credit agencies post their 1-800 numbers, might constitute a redressable “injury in fact” for an affected consumer. In other words, in order to have an actionable claim under a consumer privacy law like the FCRA, plaintiffs have to do more than show that a defendant deviated from legally mandated data-handling rules (“thou shalt take reasonable steps not to publish misinformation”) with respect to their data; plaintiffs also have to show some additional substantive harm on top of that deviation.

If that’s the Court’s position, then it has broad implications for information privacy. That’s because information privacy law is currently understood and articulated almost exclusively as a set of data handling requirements on data holders, rather than as a list of substantive rights of (or harms to) data subjects.  Indeed, there is arguably no widely accepted theory of substantive information privacy rights.  Our current best understanding of information privacy — of what it means to get privacy right, and what it means to get privacy wrong — is almost entirely procedural, meaning that good and bad acts are primarily understood in terms of data handlers’ compliance with or deviations from well-accepted best practices.

Read More


FAN 83.1 (First Amendment News) Momentum Builds in Right of Publicity Case — Volokh & Rothman File Amicus Brief Urging Review

Professor Jennifer Rothman

Professor Jennifer Rothman

The momentum is building in Electronic Arts, Inc. v. Davis, the Right of Publicity case in which Paul M. Smith recently filed a cert. petition. In what may be shaping out to be the most important First Amendment case of this Term, Smith has just received some impressive support by way of an amicus brief to be filed later today by UCLA Law Professor Eugene Volokh and Loyola, Los Angeles, Law Professor Jennifer Rothman. Twenty-nine noted scholars signed onto their brief (see listing below).

If ever there was cert-worthy case — a case in which the cert. stars seem to be aligning — the EAI case is the one. The circuit and state courts are all over the conceptual map with assorted and conflicting tests being used in the SecondThirdFifthSixthEightNinthTenth, and Eleventh Circuits and in the FloridaKentucky, and Missouri Supreme Courts. Confusion abounds, and this as asserted First Amendment rights twist in the varying doctrinal winds.

Enter Volokh and Rothman, two scholars quite familiar with this intersection of tort law and the First Amendment.  Here is how they open their brief: “The right of publicity affects a vast range of fully constitutionally protected speech. Right of publicity lawsuits are routinely brought over books, films, songs, paintings and prints (in traditional media or on T-shirts or cards), and video games that mention someone’s name, likeness, or other ‘attributes’ ‘of identity.’ The First Amendment must often protect such references to people, whether in news, entertainment, or art. Courts throughout the country have therefore recognized First Amendment defenses in many right of publicity cases involving expressive works.” (notes omitted)

“Unfortunately,” they add, “there are now five different First Amendment tests that lower courts use in right of publicity cases (setting aside cases involving com- mercial advertising, which is less constitutionally protected than other speech). Unsurprisingly, these different tests often lead to inconsistent results, which leave creators and publishers uncertain about what they may say.” (note omitted)

Professor Eugene Volokh (credit: UCLA Magazine)

Professor Eugene Volokh (credit: UCLA Magazine)

Because of the confusion in the lower courts, Volokh and Rothman argue that this “state of uncertainty is especially dangerous not for major enterprises such as Electronic Arts, but for smaller authors and publishers that lack the money to litigate such cases (even when their First Amendment defense is very strong). Many such small speakers are likely to be chilled into following the most restrictive standards, and the most restrictive interpretations of those (often vague) standards. If this situation is left uncorrected by this Court, a wide range of expression in movies, plays, novels, songs, video games, documentaries and more will be deterred.”

The rulings in Davis v. Electronic Arts, Inc. (9th Cir. 2015) and Keller v. Electronic Arts, Inc. (9th Cir. 2013), they stress, “also treat the First Amendment defense to the right of publicity as weaker than the First Amendment defense to trade- mark law. This too merits this Court’s review.”

Below is the list of scholars who signed onto the amicus brief:

  1. Jack Balkin
  2. Barton Beebe
  3. Erwin Chemerinsky
  4. Stacey L. Dogan
  5. Jay Dougherty
  6. Gregory Dolin
  7. Eric M. Freedman
  8. William K. Ford
  9. Brian L. Frye
  10. William T. Gallagher
  11. Rick Garnett
  12. Jon M. Garon
  13. Jim Gibson
  14. Eric Goldman
  15. Stacey M. Lantagne
  16. Mark A. Lemley
  17. Raizel Liebler
  18. Barry P. McDonald
  19. Tyler Ochoa
  20. Aaron Perzanowski
  21. Lisa P. Ramsey
  22. Kal Raustiala
  23. Martin H. Redish
  24. Betsy Rosenblatt
  25. Steven H. Shiffrin
  26. Christopher Jon Sprigman
  27. Geoffrey R. Stone
  28. Rebecca Tushnet
  29. David Welkowitz

FAN 83 (First Amendment News) Paul Smith Files Cert. Petition in Right of Publicity Case

It would be dangerous for persons trained only in the law to constitute themselves the final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. — Justice HolmesBleistein v. Donaldson Lithographing Co. (1903)

If there is a legal principle that unites these rulings [concerning the right of publicity], it is hard to discern. — Adam Liptak (2013)

 Paul M. Smith: Most people know him as the man who successfully argued Lawrence v. Texas (2003), which overruled Bowers v. HardwickIn the First Amendment world he is known as the lawyer who successfully argued Brown v. Entertainment Merchants Association (2011). There is, of course, more to the vita of Mr. Smith, the man at Jenner & Block who chairs the Appellate and Supreme Court Practice there, and co-chairs the Media and First Amendment, and Election Law and Redistricting Practices. So you get the idea — he’s a seasoned and highly skilled appellate lawyer.

Paul M. Smith

Paul M. Smith

In case you missed it, Mr. Smith’s latest case is Electronic Arts, Inc. v. Davis, in which he filed a cert petition in the Supreme Court last September. The issue in the case is “whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.” The controversy stemmed from the depiction of  former NF players in the “Madden NFL” video game franchise.

9th Circuit Ruling: In an opinion by Judge Raymond Fisher writing for a three-judge panel, the Ninth Circuit denied the First Amendment claim. “EA has not shown,” wrote Judge Fisher, “that its unauthorized use of former players’ likenesses in the Madden NFL video game series qualifies for First Amendment protection under the transformative use defense, the public interest defense, the Rogers test or the incidental use defense. Accordingly, we affirm the district court’s denial of EA’s motion to strike.”

The Cert Petition 

“This case involves the collision of the First Amendment and the state-law ‘right-of-publicity’ tort, an issue that has engendered conflict and disarray among the lower courts to the detriment of free expression. The right of publicity is a modern tort, first recognized in 1953” in the case of Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953). Thus does Mr. Smith begin his brief and his discussion of the “modern tort” that gave rise to the First Amendment defenses raised in EAI. 

 Conflict in the Circuits

The Supreme Court has not addressed the question, and decisions from the lower courts are a conflicting mix of balancing tests and frameworks borrowed from other areas of free-speech doctrine. — Judge Diane Sykes (2014)

As argued in the Petitioner’s cert. petition, the Supreme Court’s “only contribution came nearly forty years ago in Zacchini v. Scripps-Howard Broadcasting Co., (1977), in which the Court held [by a 5-4 vote] that the First Amendment did not bar a right-of-publicity claim against a television station that broadcast an entertainer’s entire human-cannonball act. . . . Thus, Zacchini offers little or no guidance in cases involving mere depictions of individuals, as opposed to appropriation of their actual performances in full.” On that score, and as discussed by Mr. Smith, there is a conflict among the lower courts as how to analyze such cases.

“The lower courts’ various and conflicting constitutional tests,” Smith maintains, “have resulted in numerous irreconcilable outcomes.” For example, in his brief he identifies the following conflicts:

  1. Transformative-Use Test: Used by the Third and Ninth Circuits.
  2. Rejection of Transformation-Use Test: The Second, Fifth, Sixth, and Eleventh Circuits, along with the Florida and Kentucky Supreme Courts, have “held that the First Amendment protects non-commercial speech depicting well-known people even if the depiction is not transformed.” (See below re Rogers test).
  3. Case-Specific Balancing Test: Used by the Eight and Tenth Circuits.
  4. Predominate Purpose Test: Used by the Missouri Supreme Court.

Suggested Approach

The test used in Rogers v. Grimaldi (2nd Cir., 1989), Smith argues, “allows the right-of-publicity tort only when the speaker has used a depiction of, or reference to, a celebrity to sell something — either by falsely claiming a celebrity commercial endorsement or by including a celebrity image in a publication gratuitously, just to attract attention. Confined to these circumstances, the right of publicity does not raise constitutional concerns. Speech that falsely claims a commercial endorsement is akin to the category of fraudulent speech that the government has long regulated without any First Amendment concerns. And the gratuitous use of a celebrity’s image to attract attention, unrelated to any expressive content in the work, likewise falls outside First Amendment protection altogether. Thus confined, the right-of- publicity tort raises little constitutional concern.”

The brief closes with this admonition: “Unless and until this Court intervenes, a great deal of valuable and protected expression will be chilled.”

Related Articles, Events & Blogs

 → Rebecca Tushnet, “A Mask that Eats into the Face: Images and the Right of Publicity,” Columbia Journal of Law & the Arts (2015)

 Eugene Volokh,” Freedom of Speech and theRight of Publicity,” 40 Houston Law Review 903 (2003)

 Rothman’s Roadmap to the Right of Publicity: a 50-state interactive survey of right of publicity laws, plus breaking news.

→ On October 17, 2015, the Abrams Institute hosted a workshop entitled “Right of Publicity: Closed Workshop.” Participatants included Floyd Abrams, Paul M. Smith, Rebecca Tushnet, Jennifer Rothman, Mark Lemley, Jack M. Balkin, Bruce Keller, Stacey Dogan, and Lee Levine.  The following issues were addressed:

  1. Current state of right of publicity law;
  2. Introduction to the current relationship of right of publicity to copyright, trademark and privacy principles;
  3. First Amendment theories relevant to thinking about right of publicity;
  4. The nature of the “right”;
  5. How is the “right” to be reconciled with the First Amendment?;
  6. Relationship to Copyright law; Relationship to Trademark law; and
  7. Practical issues

11th Circuit finds Georgia State psychologists have no First Amendment right to complain Read More


Madison’s Notes on the Federal Convention

I can’t recall being as excited to read a new book as I am about starting Mary Sarah Bilder’s Madison’s Hand: Revising the Constitutional Convention.  The book focuses on the fact that Madison revised his records of the convention’s debates until his death.  What did he change, why did he make these changes, and to what extent does this call into question the reliability of this record? All very important questions.  I wish I’d thought about asking them.


Can We Tolerate Tolerance?  

This is the third in a series of occasional short essays about free speech in America. Earlier installments can be found here and here.

We live in a tolerant society. Of course, that is an exaggeration. But when it comes to so many flashpoint issues – ranging from blasphemy to race-hate speech – we are far more tolerant than almost all other nations, so much so that we are routinely criticized for being too tolerant. It is our badge of honor . . . and dishonor.

Professor Mark Lilla

Professor Mark Lilla

Mindful of the events in France and Denmark earlier this year, I wonder: Will we continue to tolerate toleration if our world takes a terrible turn? My question has less to do with what is being tagged as the “terrorist’s veto” than with a more complex problem, and one therefore even more difficult to resolve. This problem occurred to me when I first read an eye-opening essay by Mark Lilla in the New York Review of Books, an essay entitled “France on Fire.” Here is a very brief excerpt:

“For the past quarter-century a political and intellectual culture war over the place of Islam in French society has been bubbling along, and every few years some event — a student wears a burka to school, riots erupt in a poor neighborhood, a mosque is attacked, the National Front wins a local election — renews hostilities.”

I want to extrapolate from that essay (at once insightful and provocative) in order to outline a phenomenon that may be hurling our way, a phenomenon related to toleration and dissident speech.

Before I do, however, let turn to the glorious side of the toleration equation by way of a well-known case, West Virginia State Board of Education v. Barnette (1943). Recall the Jehovah’s Witnesses’ flag-salute case, the one with that liberty-inspiring majority opinion by Justice Robert Jackson. In words that should be fixed in every lawmaker’s consciousness, Jackson declared: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” The judgment in that case affirming First Amendment freedom is all the more amazing given that it was rendered in wartime and involved a religious sect that was then very much hated in various quarters of American society. (See Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000).)

The (Hypothetical) Problem

Against that backdrop, imagine the following scenario. Assume that the editors of a respectable libertarian magazine elected to publish several satirical cartoons of the Prophet Muhammad in order to make a First Amendment point and to take a stand against the “terrorist’s veto.” Assume thereafter that the Charlie Hebdo incident replayed itself in Cincinnati (the headquarters of my hypothetical magazine). Ten people who work for the magazine are murdered and two Muslim extremists take credit. Both of the terrorists are later killed in a shootout with police that also results in the deaths of two local police officers.

Here is where I begin to extrapolate from Professor Lilla’s essay. Now assume the following additional scenarios, replete with a few quotations from the Lilla essay”

  1. The Governor of Ohio calls for a moment of mourning with heads bowed on the day following the tragedy (say, the time is 11:00 a.m.);
  2. A “noticeable number” of Muslim public high school students in Cincinnati refuse, on religious and political grounds, to bow their heads;
  3. “And not only that. Some [tell] their teachers that the victims got what they deserved because no one should be allowed to mock the Prophet”;
  4. “Others celebrate the killers on social media, and circulate rumors that the entire crisis was manufactured by the government and/or Zionist agents”; and
  5. The parents (some of whom work for state and local governments) of some of these Muslim-American students speak openly (though not at work) to defend their children and endorse the positions they took.

Note that the Muslim-Americans in the above scenarios were otherwise peaceful and law abiding. And some Muslim-American leaders sought to counteract the messages of the violent extremists among them. That said, let me stir the pot a bit more with a few more scenarios and related questions:

  1. So far as government entities are involved, how far are we willing to go to accommodate (culturally, statutorily, and constitutionally) the religious views of the more observant and separatist Muslim-Americans who harbor what we would see as extreme views concerning homosexuality, female purity, and Jews and Israel?
  2. Finally, let me again from quote Professor Lilla to raise a final question: Some “students and their parents demand separate swimming hours or refuse to let their children go on school trips where the sexes might mix. . . . There are fathers who won’t shake hands with female teachers, or let their wives speak alone to male teachers. There are cases of children refusing to sing, or dance, or learn an instrument, or draw a face, or use a mathematical symbol that resembles a cross. The question of dress and social mixing has led to the abandonment of gym classes in many places. Children also feel emboldened to refuse to read authors or books that they find religiously unacceptable: Rousseau, Molière, and Madame Bovary. Certain subjects are taboo: evolution, sex ed, the Shoah. As one father told a teacher, ‘I forbid you to mention Jesus to my son.’” Does our commitment to religious freedom extend that far so as to accommodate the genuine religious views of those who hold them?

Let me be clear: I do not mean to demean Muslim-Americans as a class, nor do I wish to be understood as saying the above scenarios mirror the sentiments of most Muslim-Americans . I trust they are not. Then again, I may disagree with some of them, and sometimes vigorously, on several of the issues flagged above. But I also believe in toleration, and the ever-present need to be sensitive to the plight of minorities of all ideological, political, and religious stripes.

So where does that leave us?

Testing Our Tolerance Read More


Weiner’s Response to Comments about the Parent-Partner Status


As the date for this symposium drew near, I grew both excited and terrified. The excitement stemmed from the fact that seven insightful and well-respected family law scholars were going to read and comment on my book. Not only would my book have an audience, but the audience would be composed of people whom I knew and respected! That excited me. The terror came from my fear that those readers might hate the book.   I confessed to one of my Oregon law colleagues that the fear kept me up at night. He reminded me that academics are supposed to be critical, test ideas, and engage in discussion. He warned me that no blog post would simply say, “I completely agree with the book.” While I knew this fact even before he spoke, his words brought me some peace of mind. Our job is to discuss and to question.  In fact, I myself had critiqued some of my co-participants’ work in my book.

When the blog posts started emerging (and the first four appeared quickly in succession on Monday), I felt a great sense of appreciation that the participants had taken the time to read my book, and had shared their thoughts about it with the world.  I, of course, was also relieved that people found the book interesting and provocative. The participants did not always agree with me, but I found each blog post fascinating, cogent, and deserving of a response. The symposium had instantly achieved my own personal goal of providing a starting point for a conversation.

After reading and pondering all of the blog posts, I was struck as much by what the commentators did not say, as what they did say. While I will engage with each of the author’s comments later, it is notable that no one took issue with the idea that a status might offer great benefits for children and society. No one disputed that too many children are disadvantaged because of suboptimal parental relationships, including a failure of the parents to work together as a team for their children’s benefit. No one disagreed with my claim that it was unfair that society had not given a name to the relationship of so many children’s parents, let alone a structure that might foster supportive behavior between the parents. No one questioned the law’s ability to create a social role, and the effect that a new social role might have on ill-advised reproductive behavior and detrimental parental behavior. The reviewers also left untouched the claim that the status might foster love and civic virtue.

I don’t want to read too much into the silence surrounding these and other topics, for the reviewers understandably focused on the issues that most concerned them. Their silence may not signal agreement with my analysis. Nonetheless, I am going to take it as a positive sign that the book’s basic argument was not challenged. Instead people mostly raised questions about various obligations (e.g., was the content of relationship work appropriate) and potential disadvantages to specific obligations (e.g., would the obligation to give care or share disproportionately impact low-income or minority communities). People’s comments also suggested that they were receptive to the general idea. One participant thought the book “makes a persuasive case for seriously considering the adoption of such a status,” another said the status “is clearly promising enough to be worth a state experiment, or two or three or four,” a third participant concluded, “I fully support Weiner’s larger project of inculcating a stronger tie between parents to promote the well-being of children,” another stated, “I have no problem with three of the five duties,” and yet another indicated that the book was “compelling…on why we need to create a new legal status.” As I said at the end of Chapter 8, “[T]he legal obligations are just the details and details about which we might reasonably disagree. They should not detract from the conclusion that flows from the foregoing analysis: a parent-partner status is warranted.” (p. 318). It seems as if my co-participants might agree; if so, we should work together in the future to identify other inter se obligations that might better constitute the status than those that they disliked. Of course, this future project might become unnecessary if I can convince them here that all of the obligations are warranted.

Before I address each participant’s comments, I want to thank the organizer of this wonderful symposium, Solangel Maldonado. Professor Maldonado has written with great insight about the discrimination that nonmarital children still face as well as the importance of the relationship between divorced fathers and their children, among other things. I feel honored that she chose my book as the centerpiece for a conversation about the future direction of family law. If it weren’t for Professor Maldonado’s initiative and organizational skills (e.g., identifying participants, getting materials out in a timely fashion, and instructing us how to blog), this symposium would not have happened. So, thank you, Professor Maldonado. I have enjoyed the symposium immensely and have learned a lot from my co-participants.

Read More


Suing the Lottery

Illinois is in the throes of a budget crisis, and one of the means that the state is using to save money is delaying lottery payouts. At least one lottery winner is suing over this, which leads me to wonder

  1. Do lottery statutes typically mandate that eligible ticket holders and winners get a payout, or do they provide some discretion to the state not to pay?
  2. Can Illinois be sued for damages for a payout delay or does sovereign immunity bar any action?
  3. If a damage suit is possible, is the proper remedy for a payout delay merely interest, or there is something else that would be required given the tax consequences of a delay?

FAN 82 (First Amendment News) Smolla & Abrams to file First Amendment brief in Redskins trademark case

The case is Pro-Football, Inc. v. Blackhorse, which is currently pending in the United States Court of Appeals for the Fourth Circuit. The stakes in that game will soon get higher as two noted First Amendment players prepare to file a brief in the case — Dean Rod Smolla and Floyd Abrams. Their amicus brief is being filed today on behalf of “professors who regularly engage in legal scholarship and litigation matters germane to the First Amendment, including the intersection of freedom of speech and intellectual property.”

As District Court Judge Gerald Bruce Lee described it in his opinion, this “case concerns Blackhorse Defendants’ petition to cancel the registration of six trademarks owned by PFI on the grounds that the marks consisted of matter that ‘may disparage’ a substantial composite of Native Americans and bring them into contempt or disrepute under Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), at the time of their registrations (1967, 1974, 1978, and 1990).”

UnknownDistrict Court Ruling: As to the Pro-Football Inc’s (PFI) First Amendment claims, Judge Lee ruled: “With regard to PFI’s First Amendment challenge, the Court DENIES PFI’s Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America for two reasons. First, Section 2(a) of the Lanham Act does not implicate the First Amendment. Second, the federal trademark registration program is government speech and is therefore exempt from First Amendment scrutiny.”

Enter Smolla & Abrams: First, they argue that “Section 1052(a) of the Lanham Act is a brazen exercise in viewpoint discrimination. On its face and as its animating purpose, it exists to discriminate against expression perceived by the government to be disparaging and offensive. Under the strict scrutiny standard applicable to content and viewpoint discrimination, the law cannot stand in light of the bedrock principle underlying the First Amendment that government may not penalize speech merely because it is deemed offensive or disagreeable. These principles apply to laws that burden speech just as they apply to laws that fully censor it.”

Dean Rod Smolla

Dean Rod Smolla

Next, they maintain that “Section 1052(a) is plainly unconstitutional unless some alternative First Amendment doctrine is applicable exempting the statute from the normal strictures forbidding viewpoint discrimination. Several have been posited. One claim is that trademark registration is ‘government speech’ and thus outside the provenance of the First Amendment. A second argument is that trademark registration is a government benefit, not a right, and that what appears to be viewpoint discrimination is merely the government acting to shape the contours of a benefit program. And finally, it may be claimed that regulation of disparaging trademarks constitute a valid regulation of commercial speech. None of these arguments are sound.”

In response, Smolla & Abrams offer four main arguments:

  1. “A decision by the government to deny trademark registration does not fit either the theoretical justifications that support the government speech doctrine, or the doctrinal tests that have emerged to define the doctrine’s contours. . . .”
  2. “Trademark registration is similarly outside the doctrinal definition of government speech. Trademarks are understood in society as the identifiers of private speakers. Trademarks are not created by the government, aligned with the government, or functionally used as “government IDs” or platforms for government expression. . . .”
  3. “The doctrine of unconstitutional conditions bars the government from denying government benefits to speakers on the condition that those speakers surrender First Amendment rights they would otherwise enjoy. While the unconstitutional conditions doctrine does not bar government from using the leverage of a public benefits program to prevent discriminatory conduct (as, for example, with gender discrimination provisions of Title IX), § 1052(a) is not an anti-discrimination provision, and the Washington Redskins franchise does not stand accused of any discriminatory conduct. . . . ,” and
  4. “Section 1052(a) cannot be defended as a valid regulation of commercial speech. Although trademarks are commercial identifiers, and regulation of trademarks are often regulations of commercial speech, there is no commercially related purpose underlying § 1052(a)’s prohibition on disparaging, scandalous, or contemptuous marks. It is entirely the non-commercial elements of the communication that § 1052(a) regulates, the elements deemed by the government to be culturally and politically offensive. The cancellation of the Redskins mark is thus not in any authentic sense commercial regulation at all, and ought not be analyzed under commercial speech doctrine.”

Disclosure: I signed onto the Smolla-Abrams amicus brief. 

Related Stories 

Alex Christian, “Is There Hope for the Washington Redskins’ Trademarks After All?,” Davis Brown, Oct. 22, 2015

California governor bans Redskins name at public schools,” Associated Press, Oct. 13, 2015

→ AAron Kraut, “Debate Over Washington Redskins Name Comes to County Elementary School,” Bethesda Magazine, Oct. 26, 2015 (“After a parent said the school system should bar staff and students from wearing team garb, other parents defended the name.”)

Steph Bazzle, “ACLU On Redskins’ Trademark Case: Government Shouldn’t Force The Team To Change Its Name,” Inquisitr,  March 8, 2015

Begging & the First Amendment

Dec. 12, 2011. Boston, MA. Staff photos of the staff of the American Civil Liberties Union of Massachusetts. © 2011 Marilyn Humphries

Matt Segal
© 2011 Marilyn Humphries

Here is an op-ed by Matthew Segal (of the Massachusetts ACLU) concerning the rights of the poor to engage in life-sustaining speech (aka begging). What follows are excerpts from Mr. Segal’s  op-ed, which recently appeared in The Guardian:

“All across America, municipalities have criminalized begging. This is bizarre. It is now clearly established that the first amendment protects people who express themselves by spending millions of dollars. How can it fail to protect people who express themselves by asking for one dollar?”

“Many cities have suggested that begging fails to express ideas worthy of the first amendment. Not so. Requests for charity – whether from homeless persons, Salvation Army volunteers or firefighters – express need. They do so inherently and sometimes profoundly. . . .”

When we ban begging we take away the first amendment rights of the poor.

“Anti-begging measures contradict not one but two recent supreme court decisions: McCullen v Coakley, which invalidated a Massachusetts law creating buffer zones around reproductive health clinics, and Reed v Town of Gilbert, which invalidated an Arizona sign code because its rules hinged on what each sign said. So zones that prohibit begging are unconstitutional both because anti-speech buffer zones are problematic under McCullen, and because singling out one type of speech – begging – is content-based, like the sign code struck down in Reed. . . .”

“[B]eyond case law, the more fundamental issue is that begging codes risk apportioning first amendment rights by wealth. The poor cannot buy TV ads. They cannot afford lobbyists. They are not trending on Twitter. So it is cruel and unfair to say that governments can safely regulate words, including requests for charity, spoken by the poor but not by the wealthy.”

“If censorship cannot be justified by worries about animal cruelty or money in politics, then governments should not be permitted to ban begging just because it makes people feel icky.”

Anti-panhandling laws are just another form of unpopular speech. And the point of the First Amendment is keep government from suppressing what is unpopular or even despised.  — Robert Corn-Revere, Oct. 26, 2015

 Police Officer Uses First Amendment to Protest “Scam” Panhandler (see video here

Campus Free-Speech Watch Read More