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Free Speech/First Amendment

All articles with the "Free Speech/First Amendment" tag.

Published: Tue, 24 Jan 2017 00:00:00 -0500

Last Build Date: Tue, 24 Jan 2017 01:59:53 -0500


Let’s Avoid Fake Outrage over Madonna's Violent White House Fantasy

Mon, 23 Jan 2017 18:00:00 -0500

For proof that the snowflake tendency runs as deeply among Trumpites as it does among campus censors, look no further than the Madonna controversy. Yes, the dowager duchess of pop, the 58-year-old who sings about being a "girl gone wild," has let her mouth land her in hot water again. Her speechcrime this time? To admit in public that she fantasized about blowing up the White House after Trump won it. In an otherwise typically Madonna speech at the Women's March in Washington, D.C. — all "fuck you"s and "look-at-me"s — she said she had "thought an awful lot about blowing up the White House." She thought better of it, though, and decided it would be more effective to challenge Trump with a "revolution of love" and through her music. Ick. Maybe the blowing-up wouldn't have been so bad after all. The outrage was instant and predictable. The right-wing bits of Twitter went into meltdown. This was incitement to violence, they said. Breitbart got stuck in, whipping its readers into a Twitter-frenzy with reports on Madonna's "profanity-laced speech" and claims that her violent remarks are going to be investigated by the Secret Service (it's not clear whether this is true.) Then came the talking heads. Brit blowhard Piers Morgan charged Madonna with going beyond mere "rudeness" and instead saying something "incredibly offensive"—to which we might wonder what's wrong with being incredibly offensive. He accused her of "fueling an idea" to "assassinate" Trump. "Publicly threatening to blow up the White House is a serious criminal offence", he said, and "Madonna should be arrested." Newt Gingrich was up next. He told Fox & Friends that Madonna is part of "an emerging left-wing fascism"—get a grip, Newt—and "she ought to be arrested." The inevitable petition wasn't far behind. There's always someone who wants to out of existence an idea or image they find offensive. So far 6,500 people have signed the petition calling on the Department of Justice to "Arrest Madonna for Making Threats Against the White House." Here's the thing that these pearl-clutching wailers and tweeters, these right-leaning Safe Spacers don't seem to understand: Madonna made no threat to blow up the White House. Nor did she incite anyone else to. She merely talked about a fantasy she had had. She "thought an awful lot" about blowing up the White House. She thought it. To arrest her for this would be to arrest her for committing a thoughtcrime, for imagining something. It would be as mad as arresting her for her murder of that bloke in the movie Body of Evidence, which she also didn't really do—that, too, was a fantasy, an image. What next? Arrest film directors who have used CGI to depict the White House being destroyed? Feel the collar of anyone who's written fiction about the killing of a president? After all, those fantasies might also trigger some hothead to do something he shouldn't. Maybe all stories and dreams and thoughts of doing harm to politicians should be outlawed. We shouldn't only defend Madonna because she didn't actually "threaten to blow up the White House," as the possibly illiterate Morgan put it. We should also defend her because heated speech, hyperbolic speech, even violence-tinged speech, is a legitimate part of political discourse and should remain absolutely free. There was a Supreme Court ruling that put this very well. In Watts vs the United States in 1969, the justices said that political talk often includes "vehement" and "unpleasantly sharp" attacks on public officials and even forms of criticism that sound violent but which are really just crude or super angry. They were ruling on the 1966 case of a young man who was convicted of knowingly threatening an individual's life—the President's—during a rally in D.C. against police violence, when he said: "They always holler at us to get an education. And now I have already received my draft classification... and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is [...]

Trump Brings Back Ban on Funds for Groups That Promote Abortion, While Congress Reconsiders Global Anti-Prostitution Pledge

Mon, 23 Jan 2017 15:00:00 -0500

On his first Monday in office, Donald Trump signed executive orders instituting a hiring freeze for all federal government positions outside the military and reinstating a ban on international aid going to nonprofits that provide abortions or promote information on them, regardless of what other services they offer. The contentious abortion rule represents a back and forth that's been taking place under Republican and Democratic administrations since the 1980s. Known as the "Mexico City Policy," it was instituted under President Ronald Reagan, reversed by Bill Clinton, restored by George W. Bush, and again reversed by Barack Obama. Not to be confused with the 1973 Helms Amendment, which bans groups from using U.S. government funds directly for abortion services abroad, the Mexico City Policy targets broader conduct, requiring that "as a condition of their receipt of federal funds," groups must agree to "neither perform nor actively promote abortion as a method of family planning in other nations." A diverse group of more than 100 public health, women's issues, and civil liberties organizations have already issued a statement opposing the return of the Mexico City Policy, which they refer to as "the global gag rule." "The global gag rule ... interferes with the doctor-patient relationship by restricting medical information healthcare providers may offer, limits free speech by prohibiting local citizens from participating in public policy debates, and impedes women's access to family planning by cutting off funding for many of the most experienced health care providers who chose to prioritize quality reproductive-health services and counseling over funding that restricts care and censors information," it says. Groups endorsing the statement include the American Civil Liberties Union, the American Congress of Obstetricians and Gynecologists, Amnesty International USA, the National Organization for Women, the Alliance to End Slavery & Trafficking, the Unitarian Universalist Women's Federation, the International Medical Corps, New York University's Global Justice Clinic,and Human Rights Campaign. The Mexico City Policy is one of several federal aid conditions that have been contingent on controversial social issues. Since 2003, the U.S. has banned groups that get grants to fight HIV/AIDs and/or human trafficking from supporting the decriminalization of prostitution. Referred to as the anti-prostitution pledge, the policy was proposed for anti-HIV groups as part of Bush's "Emergency Plan for AIDs Relief," passed by Congress in May 2003 as the "United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act." It stipulated that no grant money could be used "to promote or advocate the legalization or practice of prostitution or sex trafficking" nor to "provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking." The anti-prostitution pledge was also part of the bipartisan 2003 reauthorization of the Trafficking Victims Protection Act (TVPA), which stated that no federal money "may be used to promote, support, or advocate the legalization or practice of prostitution" and no funds "may be used to implement any program" by an organization that "has not stated in either a grant application, a grant agreement, or both, that it does not promote, support, or advocate the legalization or practice of prostitution." Many public-health and human-rights groups opposed these policies on the grounds that decriminalizing prostitution is often supported as a means to stop the spread of sexually-transmitted infections and sex trafficking by force, fraud, or coercion. The pledge was initially applied only to foreign nonprofits, but in 2005 the Bush administration began applying it to U.S. groups, too. In 2013, the U.S. Supreme Court ruled that the part of the pledge requiring anti-HIV/AIDs groups to explicitly denounce prostitution was unconstitutional as it violated the First Amendment. "This case ... is about compelling a grant recipient t[...]

Pricing Laws Violate Free Speech

Sat, 21 Jan 2017 10:00:00 -0500

The comedian Gallagher once joked that customers don't like to hear they're being charged more for using credit cards—they'd rather hear they're getting a "discount for cash." But in New York and some other states, it's not just what customers want to hear. Telling customers there's a surcharge to pay by credit card can actually land business owners in jail. Yet it's perfectly legal to tell them something costs less if they pay cash. That, at least, is how New York officials enforced the law, which—read literally—actually only prohibits shopkeepers from charging customers different prices depending on how they pay. Passed in the 1980s, the law is supposedly intended to protect consumers from hidden fees. But business owners must pay processing fees that don't apply to cash transactions. Charging customers to pay that fee makes perfect sense. That's why New York officials didn't punish businesses that said they were giving cash customers a discount. Yet that also means the state was violating the free speech rights of businesses who used the word "surcharge"—which, after all, is the truth. Business owners therefore sued on First Amendment grounds, and the U.S. Supreme Court heard the case last week. The Court has made clear that government can't punish people simply because they express themselves in one way or another. Laws must limit actions, not words. Yet the law's actual language makes no reference to speech. It just says, "No seller…may impose a surcharge on a [customer] who elects to use a credit card." As Justice Stephen Breyer pointed out at the January 10 hearing, that language doesn't seem like a limit on free speech—it's just a kind of price control. How, he asked, could the law violate the First Amendment if it only limits what store owners do, not what they say? Business lawyers answered that however the law may read, it's only enforced when shopkeepers call the price difference a "surcharge," rather than a "discount." But there's a deeper sense in which the New York law violates the Constitution: all price restrictions are limits on free speech. That's because prices are just a way of conveying information. For any product or service on the market, the price is simply a number that represents what the owner is willing to trade for. That number is based on many different factors—how much flour goes into a cake, how much labor goes into a car, how much research goes into a new medical treatment—but ultimately all a price does is convey information about the scarcity of the ingredients that go into that product, and how what other people are willing to give in exchange for that product. As economist Thomas Sowell has put it, "prices are like messengers conveying news." Laws that ban companies from charging what they want don't make products or services cheaper, any more than the government can simply declare that cakes can be baked without flour or cars made without labor. All that price controls do is ban companies from telling people what the products and services are actually worth. Such laws, writes Sowell, "[do] not change the underlying scarcity in the slightest." Price control laws are like painting over the numbers on your speedometer in order to comply with the speed limit. If companies are punished for charging what something is worth, they will just stop selling it. Justice Breyer hinted at this fact in a question to the business's lawyer. Recalling the Depression-era Office of Price Administration, he explained, "Ken Galbraith ran it for a while. And they would—what they would do, he said, is they'd go around and they'd smell what the price was," and "you couldn't charge a higher price. Would you have come in and said, Ken Galbraith says you can only charge $13 for this item. It violates our free speech?" The answer is yes: saying a $50 item only costs $13—or that credit card transactions have no cost—or that there's such a thing as a free lunch—doesn't make it so. Prices can't be "smelled," or dictated, by a government [...]

Students Arrested for Passing Out Pocket Constitutions on Michigan Community College Campus Sue School

Sat, 21 Jan 2017 07:30:00 -0500

Two members of Young Americans for Liberty's (YAL) Kellogg Community College (KCC) chapter have filed suit against the Michigan school following their arrest on campus last September for passing out pocket-sized copies of the U.S. Constitution without administrative permission. Michelle Gregoire (a student at KCC) and Brandon Withers, along with KCC's YAL chapter are suing the school, its Board of Trustees, and several high-ranking administrators for violating the students' "clearly established constitutional rights" when they were charged with trespassing and jailed for seven hours (the charges which were dismissed 10 days later, according to The plaintiffs claim the school violated their rights of freedom of speech, due process, and equal protection under the law, and as a public institution, KCC is bound by the First Amendment. Before having campus police place them under arrest, school administrators insisted Gregoire and Withers were in violation of the school's solicitation policy because they had not received prior approval to recruit for their organization, which the students claimed they had repeatedly attempted to obtain through official channels to no avail. Watch video of their arrest below, where Gregoire is warned to not return to campus without permission, even though she attends the school: src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0"> The lawsuit alleges, "By policy and practice, Kellogg Community College claims the unchecked right to prohibit students from engaging in practically any constitutionally protected expression anywhere on campus unless they first obtain permission from KCC officials," adding: Thus, students may not speak spontaneously anywhere on campus. Furthermore, KCC maintains an unwritten speech zone policy limiting student expression to one location on campus. If students express themselves on campus without a permit or in any other location, KCC deems them to be violating the Code of Conduct for Students, which exposes them to a variety of sanctions, including expulsion. Through the permitting process, KCC retains unfettered discretion to determine both whether students may speak at all and where they may speak. In so doing, it fails to protect students against content and viewpoint discrimination. These policies and practices chill protected student speech and disable spontaneous student speech on campus. Also according to the lawsuit, the school confines free speech activities to an information tables at the school's student center, which you guessed it, can only be used with the official permission of the administration. KCC's Public Information Director shared this statement with Reason: Kellogg Community College learned this week that an organization, the Alliance Defending Freedom, has announced it is filing a federal complaint against the College regarding a trespassing incident which occurred in September 2016. The complaint itself has yet to be delivered to KCC; therefore, the details of the complaint have yet to be reviewed by legal counsel. The College, which supports the U.S. Constitution and takes seriously any allegation that one's freedom of expression has been violated, will address this matter thoroughly. On the advice of their attorneys, Gregoire and Withers declined to speak with Reason, but YAL President Cliff Maloney, Jr. said in a phone call his group has launched a national "Fight for Free Speech" campaign, which he describes as a "coordinated effort to tackle and defeat these so-called free speech zones and unconstitutional policies." Maloney adds that these students did not expect to be arrested and that wasn't the purpose of their activity, saying "If [students] are facing pushback from tyrants on campus, we ask them to film it, to capture it, so we can document it," but YAL never aims to make free speech martyrs out of students. In this particular case, Maloney says he was struck by[...]

9 Reasons Why Libertarians Should Be Worried By Donald Trump

Fri, 20 Jan 2017 12:19:00 -0500

Donald Trump is officially the president of the United States of America. Libertarians have plenty of reasons to be worried. His inaugural speech today was an extended defense of populist protectionism, much like his campaign. From trade to defense spending to entitlements to immigration, Trump has repeatedly promised to take America in a direction that is less open, less free, and more burdened by an oppressive and expansive federal government. Here are nine reasons why libertarians should be very concerned about a Trump presidency: 1) He has repeatedly promised to deport 11 million undocumented immigrants upon taking office, relying on a "special deportation force" to carry out the task. And even in the occasional moments in which he has seemed to recognize that this task would be logistically impossible, he has continued to insist that he will deport several million people right away, and that other undocumented immigrants who are in the country will not have a path to citizenship unless they leave the country first. 2) More generally, Trump's attitude toward immigrants and outsiders ranges from disdain to outright hostility. He has called for a ban on Muslim immigration and the closure of mosques, and he opened his primary campaign by declaring that Mexican immigrants to the U.S. were rapists and criminals. 3) Trump has also promised to build a massive, expensive wall along the southern border, and has insisted that Mexico will pay for its construction, an absurd notion that is already crumbling, as the incoming administration has asked Congress, not Mexico, to pay for the wall. 4) Trump has made clear that his administration will take a much more aggressive stance on trade as well. During the campaign, he floated the idea of a 45 percent tariff on Chinese goods, which would be deeply harmful to consumers and the U.S. economy. Since winning the election, his administration has raised the possibility of a 10 percent tariff on all imports, a policy that could spark a global recession. After winning in November, he said he would pull the nation out of the Trans-Pacific Partnership trade agreement on day one of his presidency. 5) Trump's authoritarian leanings extend to national security as well. He has said that he would institute a program of torture for suspected terrorists that goes beyond what went on in the Bush administration, and has also said that he would kill the families of terrorists. When informed that military commanders might resist such an order, Trump said that he would force them to commit war crimes. 6) The new president has a dim view of constitutional free speech protections too. The First Amendment, he said, provides "too much protection" for free speech. He complained that in the U.S. "our press is allowed to say whatever they want." On the campaign trail, he said he wanted to "open up" libel laws, and threatened to take action against the owner of The Washington Post after the paper published material he didn't like. He thinks flag burning should be illegal, and has repeatedly used the legal system to punish those who irritate him. 7) Trump has shown no interest in meaningful budget reforms: He has repeatedly said he will not cut Medicare, Medicaid, or Social Security—all of which are facing trillions in unfunded liabilities and are among the biggest drivers of the nation's long-term debt—and he has criticized Republicans for wanting to pare back spending on those programs. He has also proposed increasing defense spending. Under his campaign plans, federal debt would rise by more than $10 trillion over the next decade. 8) As a real estate developer, Trump repeatedly sought to use eminent domain to enable the seizure of private homes to make way for commercial developments. On the campaign trail, he defended the use of government muscle to take private property, saying "I think eminent domain is wonderful." 9) Perhaps more worrying than anything else, though, is Trump's long and well d[...]

SCOTUS Seems Inclined to Nix the Ban on 'Disparaging' Trademarks

Thu, 19 Jan 2017 09:15:00 -0500

Comments during yesterday's oral argument in Lee v. Tam, a First Amendment case in which an Asian-American dance rock band called The Slants is challenging the federal ban on registration of "disparaging" trademarks, suggest a majority of the Supreme Court is inclined to overturn the 71-year-old rule. In addition to skeptical questions from three conservative justices, Deputy Solicitor General Malcom Stewart's defense of the trademark policy faced strong challenges from two left-leaning justices that he had trouble countering. Justice Stephen Breyer asked Stewart to identify a legitimate government interest served by the Lanham Act clause barring registration of trademarks that "may disparage...persons, living or dead, institutions, beliefs, or national symbols." Stewart said the rule is aimed at avoiding terms that "distract the consumer from the intended purpose of the trademark qua trademark, which is to identify [the] source" of the product or service. Breyer was clearly not satisfied by that response, saying he could come up with "perhaps 50,000 examples of instances where the space the trademark provides is used for very distracting messages, probably as much [as] or more so than the one at issue." Later Breyer repeatedly summarized Stewart's position in a way that suggested he did not think much of it. Justice Elena Kagan emphasized that the disparagement clause draws a distinction based on viewpoint, since it allows positive messages but prohibits negative ones. "I always thought that government programs were subject to one extremely important constraint, which is that they can't make distinctions based on viewpoint," she said. Under the ban challenged by The Slants, she noted, "you can say good things about some person or group, but you can't say bad things about some person or group....I would have thought that that was a fairly classic case of viewpoint discrimination." Stewart conceded that a trademark restriction approving praise of politicians but forbidding criticism of them would constitute viewpoint-based discrimination. But he argued that the breadth of the disparagement rule, which applies to all groups of people, makes it less problematic because it means the government is not trying to suppress specific messages. "That's like saying it does so much viewpoint-based discrimination that it becomes all right," a skeptical Kagan replied. The point is crucial because viewpoint-based speech regulation is subject to "strict scrutiny," which makes it presumptively unconstitutional. It can pass muster only if it is narrowly tailored to serve a compelling government interest. Even if we assume that preventing consumer distraction "from the intended purpose of the trademark qua trademark" is a compelling government interest, a rule that applies only to disparagement is clearly not narrowly tailored. Stewart himself conceded that the disparagement rule cannot survive strict scrutiny, meaning it will be upheld only if the Court decides it is not a viewpoint-based speech regulation. The government maintains that the disparagement clause is not really a speech regulation because it merely sets a requirement for obtaining benefits the government has no obligation to provide. Chief Justice John Roberts was unpersuaded. "I'm concerned that your government program argument is circular," he said. "The claim is you're not mark because it's disparaging, and your answer is, 'Well, we run a program that doesn't include disparaging trademarks, so that's why you're excluded.'" Pressed by Justice Samuel Alito, Stewart admitted that "it would be unconstitutional to deny copyright protection" for a book that was deemed disparaging. But he argued that copyright "is much more tied to First Amendment values" than trademark because "the incentivization of free expression" is one of its main functions. By contrast, he said, "trademarks generally have not historically served as vehicl[...]

‘The Slants’: The Asian-American Band Name the Government Says Is Too Racist to Trademark!

Wed, 18 Jan 2017 16:16:00 -0500

Can the U.S. Patent Office deny trademark requests it deems disparaging or offensive, or is that a violation of the First Amendment? The Supreme Court will decide in the case of Lee v. Tam, which began oral arguments today.

The case, which Jacob Sullum wrote about earlier today, centers around an Asian-American rock group called "The Slants," which attempted to trademark its name in 2011 but was denied on the grounds that it was offensive.

"When I first heard about this," the band's founder and bassist Simon Tam told Reason's Meredith Bragg, "I though it was a practical joke."

Ironically, Tam says, the name was intended "to flip the slur around" and convey a "positive, self-empowering" message to fans.

Interview by Meredith Bragg. Cameras by Joshua Swain and Mark McDaniel, who also edited the video. Music by The Slants.

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Fordham U. Bans Pro-Palestinian Student Group Because of Its 'Political Goals'

Wed, 18 Jan 2017 12:55:00 -0500

(image) Fordham University—a private Jesuit institution in New York City—has denied Students for Justice in Palestine (SJP) the ability to form a chapter on the school's campus, citing the group's politics as the primary reason for the refusal.

In a letter to the group's applicants, the dean of students of the school's Manhattan campus Keith Eldredge wrote, "I cannot support an organization whose sole purpose is advocating political goals of a specific group, and against a specific country." Eldredge is referring to SJP's support of the Boycott Divest Sanction (BDS) movement against Israel, which Eldredge wrote is "barrier to open dialogue and mutual learning and understanding."

The Center for Constitutional Rights and the legal advocacy group Palestine Legal responded with a letter of their own, where they argued "The denial violates free speech and association principles, the University's commitment to protect free inquiry, and could give rise to a violation of Title VI of the Civil Rights Act."

Like many political student groups SJP engages in deliberately provocative speech, such as setting up "Apartheid walks" and mock Israeli checkpoints on campus. But the singling out of pro-Palestinian/anti-Israeli viewpoints as beyond the pale of acceptable speech is a growing phenomenon, with even the U.S. Senate passing the "Anti-Semitism Awareness Act" that essentially criminalizes harsh criticism of Israel on college campuses.

While Fordham is a private school and thus not required to abide by the First Amendment, Ari Cohn of The Foundation for Individual Rights (FIRE) tells Inside Higher Ed, "the justification for denying SJP recognition is completely without merit and cannot stand at any university that proclaims that it values freedom of expression, which Fordham's written policies do." Also from Inside Higher Ed:

Cohn noted that Fordham has chapters of the College Democrats and College Republicans, both of which advocate for specific political goals. "The fact that the group [SJP] is oriented toward advocating a specific political viewpoint is not out of the ordinary, and student organizations at every campus across the country do just that," Cohn said. "It's a little bit baffling to see that justification used to deny a student organization recognition."

As I've noted here at Reason, it's not just the left seeking to legislate acceptable discourse on campus, and as a cause generally associated with the left, pro-Palestinian activism's increasing marginalization on campus is a healthy reminder that free speech is meant to protect unpopular viewpoints, not ones that enjoy universal acceptance.

Offensive Trademarks Are Free Speech

Wed, 18 Jan 2017 00:01:00 -0500

In 2004 the U.S. Patent and Trademark Office agreed to register Heeb as the name of a magazine covering Jewish culture. Four years later, the PTO refused to register Heeb as the name of a clothing line conceived by the magazine's publishers, because the term is "a highly disparaging reference to the Jewish people." Such puzzling inconsistency is par for the course at the PTO, which since 1946 has been charged with blocking registration of trademarks that "may disparage...persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." A case the Supreme Court will hear today could put an end to that vain, vague, and highly subjective enterprise, which sacrifices freedom of speech on the altar of political correctness. The case involves an Asian-American dance rock band called The Slants, a name that self-consciously repurposes a racial slur. In 2011 the band's founder, Simon Tam, tried to register the name but was rejected by a PTO examiner who deemed it disparaging to "persons of Asian descent." An administrative appeals board affirmed that decision, even while conceding that the band's name was "an attempt not to disparage, but rather to wrest 'ownership' of the term from those who might use it with the intent to disparage." The board said "the fact that applicant has good intentions underlying the use of the term does not obviate the fact that a substantial composite of the referenced group find the term objectionable." In 2015 a federal appeals court agreed that Tam "may offend members of his community with his use of the mark" but noted that "the First Amendment protects even hurtful speech." The court ruled that the ban on registration of disparaging trademarks amounts to viewpoint-based speech regulation, which the Supreme Court has said is constitutional only if it is narrowly tailored to serve a compelling government interest. The interest in this case—protecting the feelings of people who might be offended by an outré trademark—does not even qualify as legitimate, let alone compelling. The PTO maintains that it's not really regulating speech, since Tam is free to call his band whatever he wants. But denying him the trademark-protecting benefits of registration clearly imposes a burden on his speech, analogous to denying copyright registration for a book that bothers a bureaucrat. The PTO also argues that trademark registration should be viewed as government speech, similar to messages on license plates. But as the Cato Institute notes in a friend-of-the-court brief (which was joined by the Reason Foundation, publisher of this website), that contention is pretty implausible when the list of registered trademarks "includes such hallowed brands as 'Capitalism Sucks Donkey Balls' and 'Take Yo Panties Off.'" Those examples also appear in a brief filed by the corporate owner of the Washington Redskins, which is engaged in its own legal battle over an allegedly disparaging trademark. The brief lists hundreds of arguably disparaging registered trademarks, including band names such as N.W.A., White Trash Cowboys, Whores From Hell, Cholos on Acid, The Pricks, Barenaked Ladies, and The Roast Beef Curtains. Since disparagement is in the eye of the beholder, registration decisions vary with the moods and sensibilities of the PTO's examiners. It is therefore not surprising that "the PTO's record of trademark registrations and denials often appears arbitrary and is rife with inconsistency," as the appeals court found. Among other examples, the court noted that "the PTO denied the mark HAVE YOU HEARD SATAN IS A REPUBLICAN because it disparaged the Republican Party…but did not find the mark THE DEVIL IS A DEMOCRAT disparaging." The PTO "registered the mark FAGDOG three times and refused it twice." Uncertainty about the PTO's decisions has a chilling effect on[...]

Arizona Republicans Demand a Safe Space from 'Social Justice' Classes at Public Colleges

Mon, 16 Jan 2017 14:05:00 -0500

Donald Trump may have won in the presidency in part because of a backlash against the perception of tyrannical political correctness from the left, but progressives are not the only political group seeking to legislate the terms of civilized debate. Case in point, a new bill introduced by two Arizona Republican state legislators—Rep. Bob Thorpe and Rep. Mark Finchem—which would ban courses or events promoting "social justice" or anything focused on the interests of any political or identity group. Thorpe told his primary targets with this bill are a University of Arizona "privilege walk" and a Arizona State University class on "Whiteness and Race Theory": "If you then look at an individual whose ancestors, because of their race, for example, they are linked to people that did something 100 or 200 years ago, that person who's living today has little or no association with what happened 200 years ago," he said. "So let's not have a wedge issue and cause that person to be vilified when they absolutely had nothing to do with some event that happened in the past." Finchem, the bill's co-sponsor, tells, "Pure and simple, this is an anti-discrimination bill" against what he called a "very perverse agenda." Finchem says he believes social justice advocates want to "slice up and dice up all of these people into groups and cater a particular message to each one of them, and all that does is advocate hate." If passed, HB-2120 would affect public primary and high schools, community colleges, and state colleges. The ban would also extend far beyond just curriculum, it also applies to "events and activities" on campus. Schools found in violation would be subject to losing up to 10 percent in state aid. Arizona passed a law to ban a specific Mexican-American studies high school class in 2010, which is now being challenged with a lawsuit filed by students. Section 1 of this is exceptionally broadly-written bill (which even Thorpe has conceded needs to be revised) reads as follows: A. A school district or charter school in this state shall not include in its program of instruction any courses, or classes, EVENTS OR ACTIVITIES that include DO any of the following: 1. Promote the overthrow of the United States government. 2. Promote DIVISION, resentment OR SOCIAL JUSTICE toward a race, GENDER, RELIGION, POLITICAL AFFILIATION, SOCIAL CLASS or OTHER class of people. 3. Are designed primarily for pupils of a particular ethnic group. 4. Advocate ethnic solidarity OR ISOLATION BASED ON ETHNICITY, RACE, RELIGION, GENDER OR SOCIAL CLASS instead of the treatment of pupils as individuals. 5. VIOLATE STATE OR FEDERAL CIVIL RIGHTS LAWS. 6. NEGATIVELY TARGET SPECIFIC NATIONALITIES OR COUNTRIES. The clause banning classes or events promoting "the overthrow of the United States government" would probably not be of great benefit to the free speech rights of Second Amendment die-hards who frequently argue that the right to bear arms was always meant as a bulwark against a tyrannical government. If the Arizona Republicans pushing this bill think they can defeat the arguments of their arch-nemesis social justice warriors by fiat, on what principled high ground can they claim to stand when other schools shut down conservative arguments about abortion, guns, or immigration? As I recently wrote at Vox, allowing authorities to legislate what is and what isn't acceptable speech on campus—especially public campuses which are required to respect the First Amendment—is a terrible idea and inevitably comes back to harm whichever party the speech restrictions were designed to protect. The authors of HB-2120 might think they're taking a stand against P.C. culture run amok, but all they're really doing is legitimizing the concept of hiding from challenging ideas rather than confronting them.[...]

Illinois Man Sues Cops Who Arrested Him for Burning a Flag

Mon, 16 Jan 2017 08:00:00 -0500

When Donald Trump declared that anyone who burns an American flag should go to jail, it was consistent with his general ignorance of the Constitution and his specific antipathy toward freedom of speech. But nearly three decades after Texas v. Johnson, the 1989 decision in which the Supreme Court recognized flag burning as a form of political expression protected by the First Amendment, police officers surely should understand that following Trump's suggestion would be illegal. Four cops in Urbana, Illinois, nevertheless saw nothing wrong with arresting Bryton Mellott last summer for violating a state law that makes public flag desecration a felony punishable by up to three years in prison. In a federal lawsuit filed last week with help from the ACLU of Illinois, Mellott argues that the four officers—Kenneth D. Sprague, Jeremy A. Hale, Matthew E. McElhoe, and Andrew J. Charles—should be held personally liable for violating his First and Fourth amendment rights because their actions were clearly unconstitutional at the time. Mellott burned a flag in a friend's backyard on the evening of July 3 as a protest against America's "blind nationalistic approach to foreign and domestic issues." He posted photographs of himself holding the burning flag on Facebook, accompanied by an explanation of why "I am not proud to be an American," followed by the hashtag #ArrestMe. Taking the bait, Officers Sprague, Hale, and McElhoe showed up the next morning at the Walmart in Savoy where Mellott worked and took him away in handcuffs after determining that his actions met the terms of the flag desecration statute. (Because part of the backyard could be seen from the street, the protest was deemed "public.") Mellott was held at the Champaign County Jail for five hours, then released with a notice to appear after a lieutenant consulted with local prosecutors. The following day, Champaign County State's Attorney Julia Rietz announced that Mellott would not be charged with violating the flag desecration statute because it is unconstitutional under Texas v. Johnson. "Open dissent is the highest form of American patriotism," Mellott said last week. "It was a frightening display of irony that on the Fourth of July, I should be taken from my workplace to sit in a county jail for exercising this liberty." Mellott is asking a federal judge to overturn the flag desecration statute and order appropriate damages for the violation of his constitutional rights. The police suggested that they took Mellott into custody for his own protection because of death threats from people offended by his Facebook post. But Mellott did not ask for police protection, and whatever anger was aroused by his protest would not justify charging him with a crime. "There simply was no justification for Bryton to be arrested for his political statement," said Rebecca Glenberg, an ACLU of Illinois senior staff attorney. "If police were concerned about Bryton's safety, they should have taken action against whoever they thought was compromising his safety, not against the person engaged in constitutionally protected speech." The Associated Press notes that "dozens of states" still have flag desecration statutes on their books. It says legislators "have been reluctant to repeal such laws either because it's politically unpalatable or it hasn't been a priority."[...]

Backpage Backed Into Corner Over Adult Ads. Is Government's Goal a Goodbye to Sex Trafficking, or Free Speech?

Fri, 13 Jan 2017 07:15:00 -0500

"After consultation with counsel, I decline to answer your question based on the rights provided by the 5th and 1st Amendments." Again and again, these words rang out through the crowded Congressional inquiry into "'s Knowing Facilitation of Online Sex Trafficking" Tuesday. A function of the U.S. Senate's Permanent Subcommittee on Investigations—literal heir to the Joseph McCarthy-era espionage and subversion investigations—the hearing was ostensibly organized to shed light on the business practices of online classified-ad forum Backpage. Led by Sens. Rob Portman (R-Ohio) and Claire McCaskill (D-Missouri), the bipartisan effort represented the culmination of a 20-month long investigation and accompanied a lengthy report on the findings. The point of the hearing, said McCaskill, was "understanding how criminals systematically use online platforms to transform normal American teenagers into sex slaves." But if so, it was as much a look at the laws governing online publishing, user-generated content, and sex work in America. And those in the hot seat—Backpage CEO Carl Ferrer, Chief Operations Officer Andrew Padilla, General Counsel Elizabeth McDougall, and former owners Michael Lacey and James Larkin—refused to answer any of the subcommittee's questions with more than a nod to the 5th Amendment. Launched around 10 a.m., the portion of the hearing featuring Backpage leadership was concluded, with nothing conceded, in under an hour. As the Backpage witnesses filed out, a swarm of reporters followed, trailing a silent Ferrer and his handlers until the third-floor door of Dirksen Building elevator closed in front of them. Lacey hung back, but mostly to say that he had said all he would say for now. "I guess you don't know what will happen next?" I asked him. "Right now," he said, "a drink." Backpage Background Portman and McCaskill's inquiry into Backpage began in 2015. After the site's execs refused to appear for questioning or turn over private business documents, the Permanent Subcommittee on Investigations filed a civil contempt action against them—the first authorized by the Senate in more than 20 years—and was rewarded with a federal court order compelling Backpage to turn over subpoenaed documents. The resulting report on these documents "conclusively shows that Backpage has been more deeply complicit in online sex trafficking than anyone imagined," Portman said Tuesday. In both the report and live testimony, the subcommittee moved seamlessly between allegations that Backpage intentionally profited from the prostitution of children and statements from Backpage representatives with regard to prostitution more broadly, leaving the unmistakable impression that Backpage leadership admitted—at least internally—to the horrible things alleged by the government. But the inquiry actually ascertained no such thing. The most significant policies the inquiry uncovered were a) moderators employed by Backpage would sometimes edit user-generated ads to remove direct references to sex for money before allowing them to post and b) between 2010 and 2012, the site employed an automatic filter to remove some blacklisted words from ads before they were posted. Subcommittee summaries of these editing and filtering processes suggest that Backpage moderators deliberately stripped words like "teen," "young," "daddy's girl," and "barely legal," from ads before allowing them to post, and this indicates that they knew about and encouraged underage ad-posting. But, of course, none of these words necessarily signals anything nefarious. Eighteen- and 19-year-olds are both "barely legal" and "teens," yet still legally adults. "Young" is a term someone well beyond 18 might use. Terms like sugar baby and sugar daddy are widely used[...]

Judge Dismisses Libel Lawsuit against Donald Trump

Tue, 10 Jan 2017 14:45:00 -0500

(image) A New York judge accepted Donald Trump's motion to dismiss a libel lawsuit brought against him by Cheryl Jacobus, a political strategist Trump said on Twitter had "begged" him for a job and was only criticizing him because she was rebuffed.

The Hollywood Reporter, which first reported the dismissal and which posted the decision on its website, noted that "Donald Trump says he wants to 'open up' libel laws but a few days before he becomes the next President of the United States, he became fortunate that such laws place high burdens on plaintiffs."

In siding with Trump, New York Supreme Court Judge Barbara Jaffe characterized his tweet as an opinion, and noted his habit of using Twitter as such.

"His tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as 'loser' or 'total loser' or 'totally biased loser,' 'dummy' or 'dope' or 'dumb,' 'zero/no credibility,' 'crazy' or 'wacko' and 'disaster,' all deflecting serious consideration," Jaffe wrote.

The judge ruled that while Trump's use of Twitter as a campaign tool might make it different from the kind of heated statements courts have previously decided "constitute communications that cannot be taken seriously," reasonable readers should understand Trump was using the social media platform to express his "opinion, even if some of the statements, viewed in isolation, could be found to convey facts." This, she decided, was consistent with precedent and "the spirit of the First Amendment." So while the judge found the tweets were "intended to belittle and demean," she ruled that a reasonable readings would preclude concluding that those tweets could somehow "damage [Jacobus'] reputation as a partisan political consultant and commentator."

The ruling also cited an article by David Danford in The Federalist, "Why Donald Trump's Constant Twitter Battle is a Brilliant Media Strategy," and Danford's suggestion that "Trump's seemingly off-the-cuff and thoughtless tweets are no small part" of a "fascinating display of political skill." The judge said Trump's Twitter use raised "some concern that some may avoid liability by conveying positions in small Twitter parcels, as opposed to by doing so in a more formal and presumably actionable manner."

Trump and his team have continued to be fans of the idea of using libel laws and legal threats to silence opponents after the election. In November, Kellyanne Conway, Trump's campaign manager, suggested then outgoing Senate Minority Leader Harry Reid (D-Nev.) should be "very careful about characterizing someone in a legal sense." Reid had described Trump as "a sexual predator who lost the popular vote and fueled his campaign with bigotry and hate." When interviewer Chris Wallace asked Conway if she was suggesting the president-elect could sue Reid, she said no. "I'm calling for responsibility and maturity and decency [from] somebody who has held one of the highest positions in our government."

Related: Trump's Problem With Free Speech

Backpage Shutters 'Adult' Ads Section Following Years of Government Bullying

Tue, 10 Jan 2017 08:05:00 -0500

Like Craigslist before it, has shut down the "Adult" section of its classified-ad website, amid a seemingly endless stream of government pressure. In both cases, state and federal authorities have maintained that the mere presence of open forums for user-generated adult advertising creates a market for child sex-trafficking. Backpage CEO Carl Ferrer and his associates have been subject to lawsuits, criminal charges, economic bullying, and Congressional hearings—the latest of which will take place today, January 10, before the U.S. Senate's permanent subcommittee on investigations—in an attempt to thwart this supposed sex trade. But after proclaiming innocence and pushing back and for several years, Backpage will now—"as the direct result of unconstitutional government censorship," its lawyers said in a statement—comply with demands to end its adult-ad section. Last fall, former California Attorney General Kamala Harris tried to convict Ferrer and former heads Michael Lacey and James Larkin (founders of Village Voice media) of pimping and conspiracy to commit pimping. A judge threw out the charges, saying they were unconstitutional and violated federal law, which specifies—under Section 230 of the Communications Decency Act—that third-party publishers can't be held criminally liable for the content of user-generated posts. Section 230 doesn't just stop sites like Craigslist and Backpage from getting in trouble if someone posts a prostitution ad there but allows Reddit to exist without its CEO getting charged for every credible user threat, keeps Facebook from being shut down after some 20-year-old picks up a 17-year-old girl there, prevents Craigslist from being found guilty every time someone rips someone off over a used washer, and stops the feds from coming after when the comments section contains unsavory content. But despite Section 230's alleged protections, government officials have again and again gone after Backpage for allowing adult ads, even though these ads do not directly reference illegal activity and any illegal activity that results from folks finding each other via Backpage takes place far outside of its owners or operators' purview. How should Backpage operators know whether a woman offering dominatrix services or a "full-body sensual massage" on the site is really offering dominatrix services or a full-body sensual massage, and not simply having sex for money? How can they know if the poster who says she's 18 is actually a few months shy of it? There's no way they can, and yet this lack of omnipotence and pre-cognition apparently won't do. As Backpage, and Craigslist before it, have shown, websites are more than welcome to offer open forums for user posts without government interference so long as none of the posts have anything to do with sexuality. Yet the moment "adult" work comes into play, all free-speech protections and anti-censorship agendas dissipate. Lawmakers, prosecutors, and the media who fellate them start saying things like, "If it saves only one child..." Shutting down Backpage won't save even one child, though, or one adult, or anybody. is a neutral publishing platform, albeit one that's become popular among sex workers ranging from strippers and erotic masseuses to people who offer sex for a fee. Without its adult section, sex workers of all ages will have to find some other way to advertise—perhaps simply by moving to a more discreet section of the site, as was done on Craigslist (anyone who thinks ridding Craigslist of its adult-services section actually thwarted commercial-sex advertising there should check out the site's "Casual Encounters" section now); perhaps by adve[...]

Nat Hentoff, 1925–2017

Sun, 08 Jan 2017 09:59:00 -0500

Nat Hentoff, the prolific critic, journalist, and civil libertarian, passed away yesterday at age 91. His son Nick reports that he "died surrounded by family listening to Billie Holiday," which I suspect is exactly how he wanted to go. Hentoff wrote many things, from young adult novels to the sleeve notes of an early Bob Dylan album. But he was most famous for two great passions: his defenses of the Bill of Rights, especially Amendment One, and his enthusiastic writing about music, especially jazz. When people talk about old-school liberals who'd defend to the death your right to say anything you want, chances are good that Hentoff is the fellow they've got in mind. In his columns for The Village Voice and The Washington Post and in articles for countless other venues (including Reason), he pounded away at the evils of censorship, and he didn't care if the censor had a left-wing agenda or a right-wing one. If anything, he seemed especially perturbed when people he expected to share his values started stomping on individual liberties. Hentoff was less likely to be called a liberal later in life. That's partly because his brand of free-speech absolutism was growing less common on the left, and it's partly because of his heterodoxy on abortion. (Hentoff was pro-life, arguing against abortion on the same grounds that he argued against capital punishment and war. Or, at least, against some wars—he eventually rended his seamless garment to support interventions in Rwanda and Iraq.) But you couldn't really cast him as a man of the right either: Besides his intense distrust for the police agencies that conservatives tend to revere, he was a longtime democratic socialist who held onto a lot of his leftist economic ideas in old age. It's not even quite right to call him an ACLU liberal, because he kept butting heads with the ACLU. (The nation's most prominent civil libertarian organization wasn't always civil libertarian enough for him.) Best to think of him as his own man, with at least a couple of views to offend pretty much anyone. He would have left a substantial legacy even if he had never written about politics at all, thanks to his work in the music world. His criticism covered several genres—one of my favorite articles of his was an appreciation of the country singer Merle Haggard—but his great love was jazz, a topic on which he wrote whole volumes. He produced several jazz albums too, by artists ranging from Max Roach to Cecil Taylor, and he had a hand in the great 1957 TV special The Sound of Jazz, which my colleague Kurt Loder once called "a landmark of televised jazz that has never been surpassed." (Watch it here.) But it was his political writing that left its biggest mark on me. I grew up reading Hentoff's attacks on censorship and surveillance, and whatever disagreements I sometimes had with him on other topics I learned a lot from his uncompromising consistency on those issues. For a taste of just how committed to free speech he was, I'll wrap up this obit with a video of him attacking the existence of libel laws, a hardcore position that even some of the fiercest civil libertarians aren't willing to accept. (For the record: I think he's right.) The video, shot in 1986, shows him debating the Objectivist philosopher David Kelley, who argues that we need libel suits to protect our "right to a reputation." When it came to regulations on speech, Nat Hentoff could make even a Randian look like a big-government guy by comparison: src="" allowfullscreen="allowfullscreen" width="560" height="315" frameborder="0">[...]