- Brief for Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan And Courtney Tsotigh In Support Of Petitioner
- Brief for the Fred T. Korematsu Center for Law and Equality, Hispanic National Bar Association, National Asian Pacific American Bar Association, National Bar Association, National LGBT Bar Association, and National Native American Bar Association in Support of Petitioner
- Brief for Law Professors in Support of Petitioner
- Brief for Native American Organizations In Support Of Petitioner,
those for the Respondent have yet to be submitted.
No doubt, First Amendment arguments will demand a lion’s share of attention in those briefs. But will the Court ultimately go that far in deciding the case, or might it take refuge in the doctrine of constitutional avoidance and decide the controversial case on statutory grounds?
→ Enter John C. Connell, counsel of record for the Respondent (with him on the brief: Stuart Banner, Eugene Volokh, Ronald Coleman & Joel MacMull). In his brief, Mr. Connell devotes considerable attention to the following argument: “The Lanham Act’s disparagement clause does not bar the registration of respondent’s trademark.” Here are some excerpts from the Respondent’s brief related to this issue:
- Statutory Claim Preserved: “Under section 2(a) of the Lanham Act, does THE SLANTS ‘disparage . . . persons, living or dead’? At every stage of this litigation, Simon Tam has argued that section 2(a) does not bar the registration of his trademark. He is thus entitled to defend the judgment below on this ground.”
- Pressing Need to Decided Statutory Issue: “Section 2(a)’s disparagement clause has existed for 70 years, but the Court has never interpreted it. The PTO has been left to develop its own disparagement jurisprudence, which has wandered ever farther from the statute’s text and from any reasonable understanding of what Congress intended. This case provides an opportunity for the Court to guide the PTO back to the text of the statute.
- No Statutory Disparagement: “Simon Tam and his band members are not disparaging Asian- Americans. They are doing precisely the opposite; they are appropriating a slur and using it as a badge of pride. Simon Tam is not a bigot; he is fighting big- otry with the time-honored technique of seizing the bigots’ own language. “Slant” can certainly be used in a disparaging way, but Tam is not using it that way. Even the most cursory awareness of the Slants’ music and the way it is packaged makes that clear.”
- PTO Misapplied Statutory Test: “Rather than considering the full context surrounding Simon Tam’s use of THE SLANTS, the PTO simply looked up the word ‘slant in several dictionaries. Rather than asking whether THE SLANTS disparages Asian-Americans generally, the PTO quoted the views of a blogger and a few self-styled spokespeople for Asian-Americans, to conclude that ‘a substantial composite of the referenced group find the term objectionable.’ Had the PTO followed the statute . . . the result would have been different.”
- Statute does not apply to “Collective Entities”: “The PTO also erred in construing section 2(a)’s bar on the registration of marks that may disparage ‘persons, living or dead’ to include marks that disparage non-juristic collective entities like racial and ethnic groups. In fact, the quoted phrase includes only natural and juristic persons. . . . Section 2(a)’s disparagement clause bars the registration of marks—such as JOHN SMITH IS EVIL—that disparage natural persons. It also bars the registration of marks—such as MICROSOFT IS EVIL—that disparage juristic persons. But the disparagement clause explicitly does not bar the registration of marks that disparage collective entities that are not juristic persons.”
- Original Purpose of Disparagement Clause: “The purpose of the disparagement clause was not to protect the civil rights of racial and ethnic minorities. Rather, the purpose appears to have been to bring American trademark law into conformity with the language of a recent treaty. In 1931, the United States ratified the Inter-American Convention for Trade Mark and Commercial Protection. 46 Stat. 2907 (1931). Article 3.4 of the Convention provided for the denial of registration to trademarks ‘[w]hich tend to expose persons, institutions, beliefs, national symbols or those of associations of public interest, to ridicule or contempt.’ One of the primary purposes of the Lanham Act was, as the House and Senate re- ports both explained, ‘[t]o carry out by statute our international commitments.’ Indeed, the full title of the Lanham Act was ‘An Act to provide for the registration and protection of trade-marks used in commerce, to carry out the provisions of certain international conventions, and for other purposes.’ . . . Congress would not turn its attention to protect- ing the rights of racial and ethnic minorities for many years to come. When it did, beginning with the Civil Rights Act of 1957, Congress would refer to race and ethnicity explicitly, unlike in the Lanham Act. Section 2(a) thus protects natural and juristic persons against disparagement; it does not protect racial and ethnic groups.”
Such arguments may carry the day and thus could prevent the Court from reaching the First Amendment issues. Let’s see how oral arguments play out.
* * * *
→ Here are the Briefs in support of neither party:
- Brief for The American Bar Association Supporting Neither Party
- Brief for American Intellectual Property Law Association Supporting Neither Party
- Brief for Asian Americans Advancing Justice, AAJC and other civil rights and advocacy groups in Support of Neither Party
→ See also Erica Goldberg, Lee v. Tam: Offensive Trademarks at the Supreme Court: Speech Rights and Government Prerogative (A Series): Part One: The Weighty Legal Questions, In a Crowded Theater, Oct. 24, 2016
True Threats to Press Freedom?
→ Emily Bazelon, Billionaires vs. the Press in the Era of Trump, New York Times, Nov. 22, 2016 (“Once installed in the White House, Trump will have a wider array of tools at his disposal, and his record suggests that, more than his predecessors, he will try to use the press — and also control and subdue it.”)
→ Brent Griffiths, Trump to reporters: ‘You’ll be happy’ with my views on the First Amendment, Politico, Nov. 22, 2016 (“President-elect Donald Trump vowed that reporters would be ‘happy’ with his stewardship of the First Amendment under his presidency, despite past promises to make it easier to sue them. ‘I think you’ll be happy, I think you’ll be happy,’ Trump told New York Times reporters, editors and columnists gathered at the newspaper’s Times Square headquarters on Tuesday.”)
→ Joe Concha, Breitbart News planning lawsuit against ‘major media company,’ The Hill, Nov. 15, 2016 (“Breitbart News Network, a pro-America, conservative website, is preparing a multi-million dollar lawsuit against a major media company for its baseless and defamatory claim that Breitbart News is a ‘white nationalist website,’” the statement reads.”Breitbart News cannot allow such vicious racial lies to go unchallenged, especially by cynical, politically-motivated competitors seeking to diminish its 42 million monthly readers and its number one in the world political Facebook page. Breitbart News rejects racism in all its varied and ugly forms. Always has, always will,” the statement continues.)
→ Peter Scheer, Can the First Amendment survive President Donald Trump?, Cal Coastal News, November 21, 2016 (“To get back at the New York Times, the Trump administration can go after its biggest shareholder, Mexican telecom magnate Carlos Slim. To get back at CNN, the Trump administration can have antitrust regulators in the Justice Department and FTC put the brakes on the proposed merger of Time-Warner (CNN’s owner) and AT&T. And the same pain can be visited upon scores of other US firms, not limited to media, which, having criticized Trump’s policies, find themselves in the government’s crosshairs.”)
→ Susan Seager, Melania Trump’s ‘Revenge Lawyer’ Apparently Doesn’t Understand First Amendment, Law Newz, Nov. 19, 2016 (“Charles Harder, the Beverly Hills lawyer who destroyed Gawker as an act of revenge bankrolled by Silicon Valley mogul Peter Thiel and is now the attack-dog-lawyer for Melania Trump, wants to take down mainstream reporters and a 52-year-old Supreme Court decision. Problem is, like many tough-talking celeb lawyers, Harder misunderstands the law.”)
→ Ashly Cullins, Trump’s First-Amendment Nemesis Explains How He’ll Defend Any Defamation Lawsuits (Q&A), The Hollywood Reporter, Nov. 17, 2016 (“After then-candidate, now President-elect Donald Trump threatened to sue The New York Times and his sexual assault accusers for defamation in October, attorney Ted Boutrous turned to Twitter to tell the paper, and anyone else finding themselves in a similar situation, that he’d take on any free speech case brought by Trump, pro-bono. . .”
Question: What are some of the weapons that might be used against the press?
Boutrous’ Reply: “Subpoenas to reporters, going after whistleblowers, having an administration that’s even worse at responding to Freedom of Information Act requests, denying press credentials to news organizations, seeking prior restraints to stop publication of newsworthy information, and continuing to attack journalism and undermine its legitimacy from the bully pulpit of the presidency. We need vigorous, aggressive journalism as a democracy. The framers of the Constitution knew that people need to have accurate, factual information. If you have the president telling people that the best journalism in the world is wrong and evil, that is very harmful.”
→ Steve Benen, First Amendment faces unusual threats following Trump’s win, MSNBC, Nov. 14, 2016 (” One of the president-elect’s top aides raised the prospect of legal action against a critical senator; the president-elect himself is dishonestly attacking one of the nation’s top news outlets; Trump’s team is already taking new steps to limit press access; and the incoming Republican administration has taken aim at protesters voicing dissent in the wake of last week’s elections. If this is what we’re seeing in the first week – two months before Trump officially takes power – the First Amendment and its proponents are in for a very rough ride.”)
→ Mirren Gidda & Zach Schonfeld, Donald Trump’s Threat to Press Freedom: Why It Matters, Newsweek, Nov 12, 2016 (“Less than a month before the U.S. presidential election, the Committee to Protect Journalists issued an unprecedented statement denouncing the then-Republican nominee. ‘[Donald] Trump has insulted and vilified the press and has made his opposition to the media a centerpiece of his campaign,’ said the committee, a New York-based organization that promotes press freedom. ‘A Trump presidency would represent a threat to press freedom in the United States.’ With little more than two months before Trump takes the oath of office, the threat to the media—and the public’s right to know—is reality.”)
→ John Daniel Davidson, Mainstream Journalists Don’t Care About Free Speech Until Donald Trump Attacks It, The Federalist, Nov. 15, 2016 (“Trump’s cavalier attitude toward free speech isn’t unique. In fact, it’s a fundamental feature of the political Left. For all its wailing about free speech in the wake of Trump’s election . . . , the media spent eight years enabling and at times encouraging the Obama administration’s denigration of the First Amendment.”)
Hanging noose in yard unprotected by First Amendment Read More