Published: Fri, 24 Mar 2017 00:00:00 -0400
Last Build Date: Fri, 24 Mar 2017 21:54:11 -0400
Fri, 24 Mar 2017 17:00:00 -0400The state of Illinois enacted in 2013 a pretty blatantly unconstitutional law forbidding businesses engaged in (legal) medical marijuana sales or growing from contributing to political campaigns, in effect either directly or via a PAC (though only the latter was literally codified). But since candidates were also barred from accepting such contributions, the real legal effect was on direct contributions as well. Two Libertarian Party candidates, Claire Ball and Scott Schluter, sued over this, with the help of the Pillar of Law Institute and the Liberty Justice Center. I reported on the suit in the case of Ball v. Madigan back in June. This week, Ball and Schluter won a victory in U.S. District Court for the Northern District of Illinois, eastern division, in a request for summary judgment for them and against Illinois. ("Madigan" is Illinois Attorney General Lisa Madigan.) Quoting from the decision from Judge John Z. Lee, which considers the notion whether this law must face "strict scrutiny" as a possible First Amendment violation based on content, or the looser "intermediate scrutiny" applying to most campaign finance law: By singling out medical cannabis organizations, § 9-45 [the law being challenged] appears to reflect precisely...a content or viewpoint preference. Although Buckley and its progeny permit the government to regulate campaign contributions to some extent, surely the First Amendment does not give the government free rein to selectively impose contribution restrictions in a manner that discriminates based on content or viewpoint..... § 9-45 fails to pass constitutional muster even under Buckley's less rigorous intermediate standard. The Court therefore need not decide whether the statute would survive the more demanding standard of strict scrutiny, if that standard were to apply..... Since the only reasonable government purpose Judge Lee would accept, based on precedent, for these restrictions is "preventing quid pro quo corruption or its appearance," he finds Illinois failed to: point to any legislative findings raising concerns about corruption or the appearance of corruption in the medical cannabis industry. Nor do they point to any instances of actual corruption involving any medical cannabis cultivation center or dispensary. Rather, they rely solely upon Illinois's general history of political corruption scandals.... Still, the Judge is lenient on Illinois so far, writing that that thin evidence: nevertheless substantiate[s] Defendants' claim that the media and the public have perceived a risk of corruption relating to the medical cannabis pilot program. This is all the more true given that cannabis distribution and use were legally banned in Illinois until the passage of the Medical Cannabis Act. Although thin, such evidence is sufficient under governing law to establish an important government interest for purpose of this analysis. But that's not enough for Illinois to win: they must further demonstrate that § 9-45 is "closely drawn" to this important government interest. For the reasons that follow, they fall short of doing so..... Several features of § 9-45 render it plainly disproportional to the government's interest in preventing quid pro quo corruption or its appearance. First, § 9-45 is a disproportionate measure in that it imposes an outright ban on contributions, rather than a mere dollar limit on contribution amounts.... Defendants in this case have failed to explain why a flat prohibition is proportionate to the government's interest in avoiding the risk of actual or perceived corruption that arises when donors from the medical cannabis industry make monetary contributions to political campaigns. They assert that a wholesale ban is appropriate on the ground that medical cannabis cultivation centers and dispensaries "reap profits from the industry and require State licensure to operate" and therefore "pose the greatest risk of corruption." But this bald assertion is little more than conjecture; Defendants offer no support for their claim that medical cannabis cultivation cen[...]
Fri, 24 Mar 2017 07:30:00 -0400Yesterday I decided not to write a post about a San Francisco teenager who supposedly received cease-and-desist letters from the Trump Organization in response to her website mocking the president. Although the widely repeated story was sadly plausible in light of Donald Trump's legendary touchiness and litigiousness, the teenager, identified only as "Lucy," was interviewed by just two outlets, neither of which posted copies of the letters, which the Trump Organization unequivocally denied sending. I contacted the reporters who had communicated with Lucy to see whether and how they had verified the existence of the letters but did not hear back from them. For a good reason, it turns out: The story was a hoax, and the reasons so many writers fell for it are instructive. On Tuesday morning, under the headline "Exclusive: Trump Sics Lawyers on Teen for Making Silly Site Where Kittens Punch Him," the New York Observer's Sage Lazzaro reported that Lucy originally located her website, which enables visitors to swipe images of Trump's face with virtual cat paws, at TrumpScratch.com. Lazzaro said Lucy switched to KittenFeed.com after receiving "a cease and desist letter from Trump's general counsel stationed in Trump Tower on Fifth Avenue in NYC." The letter complained that Lucy was sullying the Trump brand. Lazzaro said the letter, which was "confirmed by the Observer," "begins [by] touting [Trump] as a 'well-known businessman' and television star and boasts, 'As I'm sure you're aware, the Trump name is internationally known and famous.'" Lucy told Lazzaro the move to KittenFeed.com did not placate the Trump Organization, which "still came at me." According to a Hollywood Reporter story by Ashley Cullins that was published on Tuesday evening, Trump was irked by a KittenFeed link to "an anti-Trump shirt that is available for purchase on Amazon." Cullins reported that "Lucy removed that link, and hasn't heard anything from the [Trump Organization] since." The lesson, according to Lucy: "This is a president who's clearly more concerned about what people think of him than doing things of substance....The fact that as president he still has teams going around bothering to shut down silly sites like mine is outrageous." Similarly, Lucy told Lazzaro, "It's so sad that his administration is focused more on being liked, burying real news and taking down sites like mine as they supposedly make him look bad." In a statement published yesterday afternoon, The Hollywood Reporter says it "now has significant doubts about the authenticity of the letter that was initially provided to media outlets by Lucy, who says she is a 17-year-old based in San Francisco and the proprietor of Kittenfeed.com." The letter, dated March 1, appears below the statement. "It's a fake," Alan Garten, the Trump Organization's general counsel, told The Hollywood Reporter. "This letter did not come from us." Garten gave the Observer a similar denial: "This is completely false. No such letter was ever sent by us." So far the Observer has not published a correction or retraction. As Bryan Menegus points out at Gizmodo (which initially repeated the story, along with Fox News, the New York Daily News, The Daily Telegraph, The Independent, Raw Story, New York, and various other outlets), the timing of the letter is problematic, since it supposedly was sent "three weeks after the site went live," and "trumpscratch.com was first registered on March 22"—the day after the Observer story. (The Washington Free Beacon's Alex Griswold made the same point on Wednesday.) Furthermore, Menegus says, KittenFeed.com "was registered before trumpscratch.com" and acquired by its current owner "around March 2," which contradicts Lucy's story. Yesterday Snopes noted the same clues that Lucy, or whoever played that character, was not on the level. Menegus also notes that "the site auto-plays Rick Astley's 'Never Gonna Give You Up,'" which is "a classic internet bait-and-switch: deceptive text or a disguised link would lead credulous people to the forgettable '80s[...]
Wed, 22 Mar 2017 13:30:00 -0400If a person can come to actual, physical harm by looking at a particular image, and you deliberately present such an image to that person knowing this could happen, can you be held criminally responsible? We're about to find out if animated images can be classified as "deadly weapons." Combative journalist Kurt Eichenwald, a loud critic of President Donald Trump and his supporters, went toe-to-toe with Tucker Carlson on Fox News back in December. As is normal in the state of social media these days, he found himself the focus of angry tweets from those who disagreed with him. But Eichenwald is also very open and has written about the fact that he is epileptic and susceptible to seizures. After the December appearance, Eichenwald claimed somebody tweeted to him a flashy animated GIF designed for the purpose of provoking a seizure. (It literally had the text "You deserve a seizure for your posts" on it). Furthermore, Eichenwald claimed that the GIF succeeded. The flashing colors prompted a seizure. After he recovered, he filed a criminal complaint in Texas in the hopes of tracking down the culprit. It looks like authorities have succeeded. A grand jury in Texas has indicted a Maryland man named John Rayne Rivello of "aggravated assault with a deadly weapon" for tweeting the offending GIF. And an FBI agent has filed a complaint accusing Rivello of violating federal cyberstalking laws. Let's, at least for the purposes of analyzing the underlying concerns with this case, set aside the politics and personalities involved. We need to do that because Eichenwald's behavior in the interview that prompted the "attack" was notably absurd—revolving around an unsubstantiated claim that Trump had been institutionalized in the 1990s. Whether Eichenwald is a person to be treated seriously shouldn't be the issue here. Is Rivello legally responsible if an image that never even physically comes into contact with Eichenwald triggers a harmful reaction? Even if Rivello was actually hoping a seizure would happen (and the evidence presented by the Justice Department, if true, suggests Rivello had actually investigated how to trigger an epileptic seizure)? NBC talked to a defense lawyer who hadn't heard of a similar case in the past: "I'm unaware of anybody being criminally prosecuted for this," defense attorney Tor Ekeland, who represents clients accused of federal cyber crimes, told NBC News. "If it's not the first time, it's one of the first times this has happened." Ekeland, who is not involved in the case, noted that Rivello is being charged with a federal cyberstalking law that is frequently the subject of criticism from First Amendment advocates. The law criminalizes using electronic communication "with the intent to kill, injure, harass, [or] intimidate" a victim, but it's typically used in relation to images (like revenge porn) or speech (like emailed death threats). What's likely unprecedented about this case is that Rivello's tweeted GIF is considered an assault weapon. "Here they're saying you used the internet as a weapon that causes physical harm," said Ekeland. "You're in different territory, because that's at least something you can have concrete testimony and evidence of, rather than squishy emotions and 'Gee, I felt bad.'" But there's still the matter than when you come at somebody with a knife, it's easy for prosecutors to make the case that you were obviously attempting to cause physical harm. The slippery slope here is that Rivello is potentially being held responsible for an unusual reaction to a stimulus that would normally be classified as speech, and only due to Eichenwald's particular medical condition. The prosecutors here want to make the easiest argument—that Rivello clearly intended to cause harm to Eichenwald, even if he didn't physically lay hands on him. But note Ekeland's comments about how cyberstalking laws, written vaguely for deliberate reason, are used by prosecutors in ways that stretch or even break the definitions. And clearly the same holds tr[...]
Fri, 17 Mar 2017 17:00:00 -0400The suppression of free speech on college campuses isn't a new thing, says Jonathan Haidt, a psychologist at the New York University Stern School of Business and author of The Righteous Mind: Why good people are divided by politics and religion. In the past, however, it was usually done by professors and administrators rather than students. Haidt says student-driven speech suppression is a relatively new phenomenon. "It was after the Yale protests that everything really spread, and that was only 13 or 14 months ago," says Haidt, referring to an incident in which students protested potentially offensive Halloween costumes. For Haidt, students calling for speech codes, trigger warnings, and the like is a reversal of what we had come to expect on college campuses in the wake of the Free Speech Movement of the 1960s. "The thing people were not expecting was that the students are the ones who are demanding [political correctness] now," he explains. "Before, it was typically the students who were demanding more freedom." This can have a chilling effect on speech even as it pushes students to opposite ends of the political spectrum. "At schools," says Haidt, "men feel they can't speak and then they go and vote for Trump." Reason TV's Nick Gillespie sat down with Haidt at the International Students for Liberty Conference to discuss the rise of political correctness and its cultural implications. They also talk about Heterodox Academy, a website that Haidt helped start that discusses the need for viewpoint diversity within the university system. Produced by Mark McDaniel. Cameras by McDaniel, Joshua Swain, and Todd Krainin. Graphics by Meredith Bragg. Subscribe to our YouTube channel. Like us on Facebook. Follow us on Twitter. Subscribe to our podcast at iTunes. Subscribe to the print edition for just $15 a year! This is a rush transcript—check all quotes against the audio for accuracy. Jon Haidt: What Greg was beginning to see was that it's the students themselves who are saying, "You can't say that. Stop her from saying that. We need rules to stop him from saying that," and that's what was new. Nick Gillespie: Hi I'm Nick Gillespie with Reason TV. Today we're talking with Jon Haidt. He is a social psychologist at the NYU Stern School of Business. Jon, thanks for talking to us. Jon Haidt: My pleasure, Nick. Nick Gillespie: You obviously have a fantastic academic reputation which proceeds anything we're doing here, but also along with Greg Lukianoff, the Director of FIRE, Foundation for Individual Rights and Education, a couple of years ago you wrote "The Coddling of the American Mind" which really brought a lot of the issues you're interested in to a much broader audience. Let's talk about campus PC and where it comes from, because this is the world we live in, it helped empower Donald Trump, he ran for presidency saying, "I was against PC." Define and quantify how we know that political correctness is getting bigger or worse on college campuses, that speech is actually being shutdown, thought is being shutdown. Jon Haidt: Right. It's hard to find. This is all so new. There's been, I believe, a kind of a moral revolution, a new moral culture emerging on campus but it really is only in the last two years. If any of your viewers graduated from college in 2013, they probably haven't seen it. There was a culture, we can talk about it in a moment, but it's organized around victims of oppression, it's a vertical metaphor of privileged and oppressor people, and victims. This idea that everything is power. It goes back a long way. Students were always at risk of being told, "Everything is power." No. "Everything is money." No. "Everything is sex." We've had these one dimensional moral cultures for a long time, but they were limited to certain departments on campus at certain schools. But something began happening in 2014-2015 where we just started hearing all these stories. When Greg and I wrote the article, it was just there were all these amazing shock[...]
Fri, 17 Mar 2017 07:00:00 -0400
Thu, 16 Mar 2017 08:15:00 -0400The First Amendment Lawyers Association (FALA) is asking new Attorney General of California Xavier Becerra to end the "abuse of governmental power" perpetuated by predecessor Kamala Harris against current and former executives of the classified-ad site Backpage. On March 14, FALA—a nonprofit membership association launched in the late '60s that has boasted some of the country's top constitutional lawyers—sent a letter to Becerra condemning "the abusive prosecution of individuals associated with the online classified advertising website Backpage.com, and also the use of expansive search warrants seeking vast amounts of constitutionally-protected material, including personally identifiable information about all of the website's users." In the letter, FALA President Marc Randazza says he can identify "no theory under the First Amendment that would countenance such an abusive use of prosecutorial discretion or such a dragnet demand for information." Kamala Harris' crusade against Backpage began last fall, when she had current chief executive Carl Ferrer and former owners Michael Lacey and Jim Larson arrested for pimping and conspiracy. The premise of the charges was that Backpage—a user-generated advertising site much like Craigslist—received payment for "escort" ads that eventually resulted in prostitution, thereby making Ferrer, Lacey, and Larkin the "pimps." But it's an argument that California Judge Michael Bowman rejected, on the grounds that Section 230 of the Communications Decency Act (CDA) prohibits the criminal prosecution of web publishers for content posted by users. "The protections afforded by the First Amendment were the motivating factors behind the enactment of the CDA," noted Bowman, whose decision to dismiss the indictments is consistent with numerous other cases against classified ad sites like Backpage. As the FALA letter points out, "at least seven other courts have expressly rejected the assumption underlying the California indictment that ads for escorts or those posted in an adult services section involve illegal speech, and none have concluded otherwise." Given this, and the fact that Harris previously signed a letter acknowledging Section 230's limit on Backpage prosecutions, "it is alarming that the State sought to bring a prosecution in the first place," writes Randazza. But it didn't stop there: after Bowman's ruling, Harris' office filed another criminal complaint against Backpage, this time asserting the same pimping and conspiracy charges and adding a few counts of money laundering, too. The new complaint simply restates the previously rejected arguments for why Ferrer, Lacey, and Larkin are guilty of criminal activity. Note that the normal process would have been for the state to appeal Bowman's final ruling, but instead, Harris—who is now in the U.S. Senate—and her office tried to simply bring the same failed criminal case in another court. This sort of "forum shopping" is "a gross abuse of prosecutorial discretion and a serious violation fo the First Amendment," FALA alleges. And that's still not all: Beyond the fact of the prosecution itself, the methods employed by the prosecutors also exhibit an utter disregard for established First Amendment limits. We have learned that a subpoena was served on Backpage.com that calls for the production of massive amounts of information for a several-year period, including copies of all advertisements posted (in all content categories), all billing records, the identities of all of the website's users and their account histories, all internal communications, and even the source code for the operation of the website. This goes beyond the despised "General Warrants" that prompted the Constitution's Framer's to adopt the Fourth Amendment's protections against unreasonable searches, and violates numerous Supreme Court decisions limiting such demands for materials protected by the First Amendment. Randazza to[...]
Wed, 15 Mar 2017 13:09:00 -0400The state of New York wants to tell you what's appropriate to post online and what should be removed. The concept behind the European Union's "right to be forgotten" has crossed the Atlantic, and two state lawmakers in New York want to attempt to institute it here. The "right to be forgotten" in the European Union originated from a court ruling demanding Google and search engines remove links to a story that embarrassed a Spanish man because it detailed a previous home repossession. The story was not factually inaccurate. He insisted it was no longer relevant and that it embarrassed him, and the court agreed he had the right to have the information censored from search engines. Since 2014, search engines like Google have received hundreds of thousands of requests to have links to news reports removed and not because there's anything factually incorrect about them, but because the people within them are embarrassed by having the information public. Now, in New York, Assemblyman David Weprin and State Sen. Tony Avella (both Democrats) are attempting to implement such a law in the United States. The bill (readable here) appears remarkably far-reaching. It would allow people to demand that identifying information and articles about them to be removed from search engines or publishers if the content is "inaccurate," "irrelevant," inadequate," or "excessive." And yes, there are potentially fines involved ($250 dollars a day plus attorney's fees) for those who don't comply. Here's how the legislation defines the rather vague justifications for removal: [C]ontent, which after a significant lapse in time from its first publication, is no longer material to current public debate or discourse, especially when considered in the light of the financial, reputational and/or demonstrable other harm that the information, article or other content is causing to the requester's professional, financial, reputational or other interest, with the exception of content related to convicted felonies, legal matters relating to violence, or a matter that is of significant current public interest, and as to which the requester's role in regard to the matter is central and substantial. This would put the courts in the position of having the authority to declare what is or isn't relevant for the public to know. Reason asked First Amendment attorney Ken White of Brown, White & Osborn (and also of Popehat fame) for his analysis of the bill. He did not hold back in an emailed statement: This bill is a constitutional and policy disaster that shows no sign that the drafters made any attempt whatsoever to conform to the requirements of the constitution. It purports to punish both speakers and search engines for publishing—or indexing—truthful information protected by the First Amendment. There's no First Amendment exception for speech deemed "irrelevant" or "inadequate" or "excessive," and the rules for punishing "inaccurate" speech are already well-established and not followed by this bill. The bill is hopelessly vague, requiring speakers to guess at what some fact-finder will decide is "irrelevant" or "no longer material to current public debate," or how a fact-finder will balance (in defiance of the First Amendment) the harm of the speech and its relevance. The exceptions are haphazard and poorly defined, and the role of the New York Secretary of State in administering the law is unclear. This would be a bonanza for anyone who wanted to harass reporters, bloggers, search engines, and web sites to take down negative information, and would incentivize such harassment and inflict massive legal costs on anyone who wanted to stand up to a vexatious litigant. Also of relevance: The law extends the statute of limitations for defamation complains for online content in a way that pretty much all but removes them. The clock for the statute of limitations for defamation claims wouldn't start ticki[...]
Sat, 11 Mar 2017 14:33:00 -0500Updated! Scroll down for news that Preet Bharara has been fired. From The New York Times comes this tale of governmental insubordination: Preet Bharara, the Manhattan federal prosecutor who was told to submit his resignation along with 45 others on Friday, has no plans to do so — forcing a potential showdown with President Trump and the Department of Justice [DOJ]. Mr. Bharara, whose office is overseeing a case against a top aide to Gov. Andrew M. Cuomo and an investigation into people close to Mayor Bill de Blasio of New York City, has told several people that he did not hand in a resignation on Friday, as he was ordered to do by the acting deputy attorney general, Dana Boente. He also does not intend to do so over the weekend, he said in conversations with associates, a move that could force the hand of the Trump administration. I'm sure Bharara has his reasons but color me unimpressed. Bharara is a classic federal prosecutor in the Southern District of New York, always looking to make headlines as much as meaningful collars. He earned the enmity of Reason readers in 2015 when his office subpoenaed information about the records of six people who left hyperbolic comments at the website about the federal judge who oversaw the controversial conviction of Silk Road founder Ross Ulbricht. Shortly after the subpoena was issued, the government issued a gag order prohibiting Reason not only from discussing the matter but even acknowledging the existence of the subpoena or the gag order itself. As a wide variety of media outlets have noted, such actions on the part of the government are not only fundamentally misguided and misdirected, they have a tangible chilling effect on free expression by commenters and publications alike.... The subpoena also covered...harmless comments as: "I hope there is a special place in hell reserved for that horrible woman," and "I'd prefer a hellish place on Earth be reserved for her as well." As Katherine Mangu-Ward noted last fall, it's true that the Trump administration asked Bharara to stay on for a while. But that was then and this is now. And there's something truly disturbing about a DOJ appointee who refuses to take a powder when asked, especially when there's no larger question about executive-power overreach. What is it that Barack Obama used to say? "Elections have consequences." Presidents get to staff this level of service the way they want to. I don't expect Donald Trump to be a champion of free speech, but removing Bharara from office is a small step in that direction. Updated (2:40 P.M.): It was nice knowing you, Preet Bharara! I did not resign. Moments ago I was fired. Being the US Attorney in SDNY will forever be the greatest honor of my professional life. — Preet Bharara (@PreetBharara) March 11, 2017[...]
Sat, 11 Mar 2017 08:00:00 -0500Last week, a Georgia state judge dismissed a lawsuit filed against talk-show host Dr. Oz over claims made on his show last year that much of the olive oil sold in U.S. grocery stores is fraudulent. The suit alleged that Oz wrongly disparaged the corrupt olive oil industry. The lawsuit was brought against Oz by an industry trade group, the New Jersey-based North American Olive Oil Association (NAOOA), under Georgia's so-called veggie libel law. It's one of about a dozen states with these awful laws—which allow a party to sue for damages if a person allegedly disparages their agricultural products—on the books. Oz won in court thanks to Georgia's anti-SLAPP law. Such laws gives people who speak out on issues of public concern a useful tool to counter lawsuits that seek to intimidate them into silence. ("SLAPP" is an acronym that stands for "strategic lawsuit against public participation.") Several domestic olive oil brands had also been sued alongside Oz. Fraud in the olive oil business is, in fact, a longstanding problem. A 1917 Missouri court case, Lo Buono v. V. Viviano & Bros Macaroni Mfg. Co., centered on fraudulent olive oil, as did a 1950 federal case involving another producer. In the past decade, The New Yorker has dedicated at least two lengthy pieces to the issue of fraudulent olive oil. And Congress recently held hearings on the issue. The fictional Corleone crime family in Mario Puzo's The Godfather used its olive oil business, Genco, as a cover for its criminal activities. That depiction of mafia involvement in the olive oil trade isn't far from the truth in some cases. Facing U.S. tax fraud charges in 1951, mafia boss and drug trafficker Francisco Paolo Coppola claimed to earn much of his income as an olive oil producer. How does such fraud play out? An olive oil might be misbranded, claiming to be of higher quality than it really is—from an earlier pressing, for example—or to be from one country but hail from another. Or it might be adulterated, containing—for example—a mix of olive oil and other less expensive food oils. In fact, the NAOOA, which represents many foreign olive oil producers, whose products make up the bulk of the olive oil sold in the United States, is itself keen to identify and prevent such fraud in the industry. A 2015 report issued by the group, for example, raises "significant questions" about the quality of California olive oils tested by NAOOA. The NAOOA clearly understands the value of free speech. Listen, I think Oz is a quack. Forbes writer Kavin Senapathy, whose writings expose quackery around food, was probably right when she called Oz's olive oil segment as "yet another gag in his lineup of shady antics." But it's also another reminder of attacks on Dr. Oz's First Amendment rights. In 2014, Oz was called before Congress to explain his claims about a variety of foods and supplements he claims have particular health-promotion qualities. "Oz has absolutely zero responsibility to hold mainstream views and every right to make money off of those views," I wrote in a 2014 piece defending Oz's free-speech rights and attacking Congress for attempting to intimidate him into silence. "His popularity has absolutely no impact on his right to say whatever the hell he wants to say. And being hauled before Congress for saying what he wants places a tremendous burden on his, your, and my First Amendment rights." As a reminder, the First Amendment protects speech regardless of its subjective value. It protects speech by neo-Nazis and Black Muslims, pornographers and religious zealots, and climate change alarmists and deniers alike. And your right to speak freely is stronger today thanks to a renowned medical doctor who freely espouses many views that appear, by any reasonable measure, to be objectively false. Critics of Oz are free to rail against his idiocies. I hope [...]
Sat, 11 Mar 2017 06:00:00 -0500Simon Tam didn't think it would be a big deal when he applied for trademark protection on the name of his band, The Slants. It was 2011, and the band—a dance-rock group whose members are all Asian-American—had been getting some buzz. A lawyer buddy told Tam he'd do the application, saying the process would take a couple hundred bucks and six months, tops. "Things turned out a little bit different," Tam told Reason several years later, on the eve of Supreme Court oral arguments over his trademark case. Since 1946, the federal Patent and Trademark Office (PTO) has been charged with blocking the registration of trademarks that "may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." It was on those grounds that the agency denied Tam his trademark. The San Diego–born musician, whose father was raised in the Hong Kong area and whose mother is from Taiwan, says the name of the band was a lighthearted (and hardly unprecedented) effort to reclaim an old anti-Asian slur. Their discography includes Slants! Slants! Revolution (2009), The Yellow Album (2012), and their latest, an E.P. titled The Band Who Must Not Be Named. Since that initial PTO denial, the case has slowly, painfully worked its way through the legal system. Early on, an administrative review board conceded 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," but rejected the claim anyway, finding that the usage was still "objectionable." In 2015, a federal appeals court sided with Tam, noting that "the First Amendment protects even hurtful speech." As the majority explained, "whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find speech likely to offend others." The PTO defended its decision by saying that Tam's speech wasn't being restricted—he can call the band whatever he likes, he simply can't have a trademark on that name. The PTO also argued trademarks are akin to government speech. But as noted in a brief filed on the band's behalf by the Cato Institute, Reason Foundation (the nonprofit that publishes this magazine), and others, that argument was pretty weak, considering that the list of currently registered trademarks "includes such hallowed brands as 'Capitalism Sucks Donkey Balls' and 'Take Yo Panties Off.'" In January, shortly after Tam sat down with Reason TV's Meredith Bragg, the Supreme Court heard The Slants' case, now known as Lee v. Tam. The justices appeared skeptical of the government's argument, pushing back on the law's vagueness, its circular reasoning, and its uneven application, suggesting that the Court might overturn the 71-year-old rule standing between The Slants and their trademark. Reason: Why did you form the band and how did you come up with the name? Tam: Back in about 2004 I had just moved to Portland, Oregon, and I dropped out of college to tour in a punk rock band. But during that time period I found myself missing home, my culture, my family and friends, and so I started importing a bunch of movies from Hong Kong. Around that time period someone said, "Hey, you should really check out this movie called Kill Bill." I missed it because I was on tour, so I bought it the day it came out [on video]. I'm watching this movie in my apartment and there is this really iconic scene. This woman named O-Ren Ishii, who walks into this restaurant with all these mafia members behind her—for most people this is just another trademark Quentin Tarantino scene, but for me it was like an epiphany. I just had to stop there, pause the film and thought, "Why is this, like, different for me?" And then I real[...]
Fri, 10 Mar 2017 14:55:00 -0500
(image) Jesse Bright was driving an Uber customer in Wilmington, North Carolina last month when he was stopped by police. His passenger was ordered from the car and searched on suspicion of drug violations. Bright decided to turn on his camera and record whatever might happen next.
But the officers on the scene did not take kindly to being filmed, with one officer telling Bright, "Be careful because there is a new law. Turn it off or I'll take you to jail." Bright demanded to know what new law the officer was speaking of, but instead he was ordered out of the car.
Bright replied, "What are you arresting me for? I'm sitting here in my car. I'm just recording in case anything happens. I'm surrounded by five police officers." Bright also admitted to being scared, but the officer told him "you're being a jerk" and threatened to search his car. To that, Bright said plainly, "you're not searching my car" and informed the officers that in addition to driving an Uber, he was an attorney and well aware of the law and his rights.
Unfortunately, the officers searched Bright's car and his person anyway, finding nothing and eventually letting both him and his passenger go on their way. But Bright tells WECT his constitutional rights were violated, which appears to be confirmed by statements from senior officers.
A spokesman with the Wilmington PD confirmed to WECT that no "new law" prohibiting the recording of police in public exists, and that the department does not instruct its officers to tell citizens that it is illegal to record them.
Wilmington's Police Chief Ralph Evangelous said in a statement (per WECT):
Taking photographs and videos of people that are in plain sight including the police is your legal right. As a matter of fact we invite citizens to do so when they believe it is necessary. We believe that public videos help to protect the police as well as our citizens and provide critical information during police and citizen interaction.
Because a deputy with the New Hanover County Sheriff's Department was also involved in the traffic stop, the Sheriff's office also released a statement reiterating the legality of recording police officers in public.
Sheriff [Ed] McMahon has viewed the Uber driver's video and believes it is clear that officers were incorrect in stating that it was illegal to record the encounter. Not only does the Sheriff agree that it is legal to record encounters, he invites citizens to do so. As a result, the Deputy involved has been counseled.
Additionally, in keeping with Sheriff McMahon's practice of openness and transparency with the citizens that we serve, he has instructed his Staff to ensure that each Deputy has been provided with information about the citizen's right to record encounters with law enforcement officers.
Watch video of Bright's unconstitutional stop below:
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Wed, 08 Mar 2017 16:15:00 -0500"A few days ago I called the fake news the enemy of the people, and they are—they are the enemy of the people," declared President Donald Trump at the annual Conservative Political Action Conference in February. Fake news like negative polls, inaugural crowds, and three to five million illegal voters? Now the Russian Foreign Ministry has gotten into the business of branding news stories as fake. The Chinese government has joined in denouncing as "fake news" reports that it tortured a human rights activist. "Trump's attacks on the media will offer a good excuse for Chinese officials to step up their criticism of Western democracy and press freedom," said Qiao Mu, a journalism professor at Beijing Foreign Studies University in The New York Times. "China can turn to Trump's attacks to say Western democracy is hypocrisy." The new report from Freedom House, Freedom of the Press 2016, finds that only 13 percent of the world's people live in countries where there is freedom of the press. In 2003, 20 percent did. That means that 87 percent of the world's people now have to endure fake news peddled and enforced by government thugs daily. There's worse news. "Press freedom declined to its lowest point in 12 years in 2015, as political, criminal, and terrorist forces sought to co-opt or silence the media in their broader struggle for power," notes the report. Freedom House director of research Jennifer Dunham writes: The share of the world's population that enjoys a Free press stood at just 13 percent, meaning fewer than one in seven people live in countries where coverage of political news is robust, the safety of journalists is guaranteed, state intrusion in media affairs is minimal, and the press is not subject to onerous legal or economic pressures. Freedom House began issuing its annual world press freedom reports in 2002 measured on a 100-point scale that evaluates the legal, political, and economic environment of each country with respect to media freedom. In 2004, the United States scored 13; in the 2016 report that score had risen to 21 points. In 2004, western democracies such as France, the United Kingdom, and Hungary scored 19, 19, and 20 respectively. In 2016, those ratings deteriorated to 28, 25, and 40 respectively. Even China's scores rose from 80 in 2004 to 87 in 2016; while Russia's rose from 67 to 83 during that period. More hopefully, Dunham observes: The varied threats to press freedom around the world are making it harder for media workers to do their jobs, and the public is increasingly deprived of unbiased information and in-depth reporting. However, journalists and bloggers have shown resilience. Often at great risk to their lives, they strive to transmit information to their communities and the outside world, and circulate views that contradict those promoted by governments or extremist groups. As most of the world's people know, the real fake news is calling the free press an enemy of the people.[...]
Fri, 03 Mar 2017 14:00:00 -0500Arkansas State Rep. Kim Hendren (R) has introduced a one-page bill that would ban "study books or any other material authored by or concerning Howard Zinn" from the state's public schools, including charter schools. Zinn has been dead since 2010, so it's not like he's a commentator on current social or political affairs, and he's not the kind of writer typically taught in high schools. But in a phone interview with Reason today, Rep. Hendren explained why he introduced legislation to protect Arkansas teenagers from hearing the ideas of the late radical leftist historian (and favorite of fictional Matt Damon characters). Hendren, who says "he's not an expert" on Zinn, asserts that a number of his constituents have raised "concerns about some of the approaches that Howard Zinn has taken to history in the books he's written." He adds, "My basic personal philosophy is I think we ought to be open to hearing both sides of the situation and then try to do what's best for ourselves and our country. That's what will happen with this bill." The 79-year-old legislator — who also happens to be the brother-in-law of Arkansas Gov. Asa Hutchinson (R) — clarified that the bill is only meant to apply to elementary and secondary schools, not public colleges. When asked if he thinks this bill could set a precedent allowing for left-leaning states to ban conservative historians' perspectives from being considered in public education, Hendren said, "Ultimately the parents have a little more responsibility to what [children] are exposed to until they are a little bit older to be able to exercise more judgment. In college and so forth, I have no problem with it." Hendren says his concern is primarily with providing equal time for opposing political viewpoints to avoid "indoctrination" of one point of view, and that his aim with this bill is not necessarily seeing his bill passed in its current form, but rather, to spark a conversation and debate. Hendren tells Reason that since news of his bill was first reported by the Arkansas Times, he has been inundated with hostile phone calls and tweets. He adds that he doesn't think he's done anything to make people think he's "a bad American or somebody that ought to be degraded or called a cracker." In late 2016 Hendren introduced a bill that would ban students from possessing any personal electronic or digital devices while at school, including video game consoles, cell phones, cameras, tablets, and pagers (what year is this?). Explaining his motivation for introducing the bill, Hendren told KATV, "If it's going to allow a young boy in that class to email, or however they do…Instagram or whatever they do, a girl in their class to send him a nude or partial nude picture, which is going on now in the public schools, it ought not be done in the classroom." As a state senator running for a U.S. Senate seat in 2009, Hendren found himself in hot water when he referred to Sen. Charles Schumer (D-N.Y.) as "that Jew." Hendren later apologized and tried to explain away his gaffe by saying, "I don't use a Teleprompter, and occasionally I put my foot in my month...I was attempting to explain that unlike Sen. Schumer, I believe in traditional values, like we used to see on 'The Andy Griffith Show.'" Telling Reason that he doesn't "think it harms people to discuss what we are discussing here," Hendren hopes for "an intelligent, respectful debate" in the Arkansas House of Representatives, adding, "we Arkansas folks think we ought to listen to each other and then try to work out a solution that's best for us and our country and our state and our young people." Of the people he says are conflating his actions with book-burning — or those that would describe his bill as fundamentally host[...]
Fri, 03 Mar 2017 00:05:00 -0500There's something creepily totalitarian about Orange Coast College's handling of the now nationally known incident involving 19-year-old Caleb O'Neil, who was suspended from the college for two semesters for secretly videotaping one of his instructors engaging in an anti-Trump rant. The suspension was bad enough, but the college also insisted that O'Neil apologize to the professor and hand in an apologetic essay about his transgressions. Fortunately, after a groundswell of public support for the student—and academic freedom generally—the college backed down and rescinded the suspension and other sanctions. For those who have missed the Register articles, human sexuality instructor Olga Perez Stable Cox was caught on video telling her class that Donald Trump's presidential victory was "an act of terrorism." The most frightening thing, she said, "is that the people who are leading the assault are among us." O'Neil eventually posted the video after being unsatisfied with the college's response. It went viral. As someone who campaigned for Trump, O'Neil had reason to fear the instructor's views could have repercussions on his grades. After all, he's one of those "among us." O'Neil's supporters, including some local Republican leaders, blasted the professor for using her teaching position to shame students. The union representing faculty there criticized O'Neil for not engaging in an "open dialogue." The school administration said it would investigate the complaint filed against the teacher, but the only obvious repercussions so far are the harshly punitive sanctions it tried to impose against the student. The college's letter to O'Neil, published on a website, understandably drew a backlash. It said that O'Neil's essay should, among other things, discuss his "thoughts and analyses on the impact of the video going 'viral' and the ensuing damage to Orange Coast College students, faculty and staff." So he was going to be required to write an essay—and the school was telling him the basic view he had to express in it. Cox says she has received angry emails and messages and now feels "paranoid" and like she's been "attacked by a mob of people all across the country." Any threats and intimidation are wrong, of course. But this whole situation could have been avoided had the college administration acted in an even-handed manner in the beginning. We don't want a world where college professors are afraid to speak forthrightly to their classes, but students are at least owed an apology when subjected to an inappropriate rant. O'Neil was being disciplined for violating the school's prohibition on unauthorized recording, which is a picayune point, given that this is a taxpayer-funded school. The First Amendment should still apply there. The punishment was outsized compared to the transgression. And even such a punishment would have been more tolerable if one could have any confidence the college treated with any seriousness Cox's in-classroom transgression. This scene has sparked anger because it confirms the worst fears conservatives have about liberal intolerance in academia. In a sane world, a few apologies would suffice. "Hey, I was distraught about the election and was unfair in my comments." "OK, I was upset by your remarks and believed that a video was my only recourse." The administration would step in and everyone would sing "Kumbaya." Instead, lawyers got involved, and there was even a threatened recall of college board members. It's the result of a college that decided to dig in its heels rather than pursue fairness. The punitive response suggests the problem at Orange Coast goes a lot deeper than one professor's lack of a filter. Ironically, Coast Colleges, the community[...]
Thu, 02 Mar 2017 00:01:00 -0500Last week, President Donald Trump erupted with fury over a series of public revelations of private facts — some top-secret and some office gossip — that painted him and his White House in a bad light. The president ordered the FBI to investigate some of these so-called leaks and his own White House counsel to investigate others. There are numerous issues related to the leaking of government information. They include the leaking of classified information, the leaking of confidential communications and the publishing of leaked material. Here is the back story. It is a felony to reveal classified information to any person who lacks a classified clearance, as some in the intelligence community have recently done to embarrass, control, intimidate or infuriate the president. The National Security Agency employs over 60,000 domestic spies, but they work in compartmentalized areas. Thus, not all of them have access to all the data collected by all of their colleagues. Only about 100 spies have access to the top-secret data that was leaked about the president. When members of the intelligence community leaked lurid allegations about the future president's alleged behavior in a Moscow hotel room, which he has vehemently denied, and when some leaked the partial transcripts of telephone conversations between retired Lt. Gen. Michael Flynn and the Russian ambassador to the U.S. — shortly before Flynn became the president's national security adviser — and when some leaked an intelligence report that contradicted the president's publicly stated conclusions on the likelihood of dangerous people immigrating to the U.S. from the seven predominately Muslim countries named in the president's now enjoined temporary travel ban, one can understand the presidential anger. And leaks are a two-sided coin. Adding to Trump's woes caused by too much revealing is the other side of that coin — too much concealing. This comes into play when one has a duty to reveal. That duty arises from the legal obligation of spies to pass on to their superiors — and ultimately to the president — all of the material information they have acquired about America's friends and enemies. Selectively concealing and revealing this type of intelligence data, thereby manipulating the presidential judgment, when one has a duty to reveal substantially all of it is a form of interference with a governmental function — namely, the president's exercise of his judgment — and that is a felony. As if all this were not enough for a young presidency to deal with, Trump finds himself with a White House staff leaking to the press Oval Office gossip about confidential conversations from within the White House that the participants in those conversations had every reason to believe would not be made public. This resulted in the temporary seizure of government-issued cellphones held by a dozen or so staffers so their bosses could learn whether any had spoken to the press. The cellphones episode was itself leaked, apparently by a participant not happy with it. What's going on here? These events are either the growing pains of a new presidential administration, still partially staffed by those loyal to former President Barack Obama, or the product of sinister forces from people attempting to exercise their own judgment about America's foes by frustrating and manipulating the judgment of the president — whom the voters elected to exercise the constitutional powers to make those judgment calls. The latter situation would be perilous, as it would mean we have unelected, unaccountable, and unnamed people pulling the levers of power in the field of national security. The leaks of confidential communica[...]