In a First Amendment win with many future implications — most immediately for the Washington Redskins football team — the Supreme Court has ruled that the First Amendment does not allow the Patent and Trademark Office to withhold trademark protection from a rock band because it considers its name to be possibly racially disparaging (or self-disparaging). The holding was unanimous, although the Justices divided on rationale. [Ilya Shapiro/Cato, Betsy Gomez/CBLDF, Eugene Volokh and more (“Supreme Court unanimously reaffirms: There is no ‘hate speech’ exception to the First Amendment”)] Earlier here (“Did Cato just file the most not-safe-for-work amicus brief in Supreme Court history?”), here, etc.
- I’ve written about Antonin Scalia’s role in the late 1970s and early 1980s as editor of Regulation magazine, and more references to his work there came up at several panels during the recent Federalist Society lawyers convention, all worth watching for their own sake: antitrust (with Judges Doug Ginsburg, Frank Easterbrook (mentioning Regulation at 16:00), et al.), administrative law (Eugene Scalia, same, at 4:25+), and statutory interpretation (Paul Clement, same, at 36:15); and see earlier on my question at the telecommunications panel;
- “Can States Forcibly Unionize Small Businesses?” [Ilya Shapiro and Frank Garrison on Cato certiorari petition in Jarvis v. Cuomo, building on Harris v. Quinn line of cases]
- High court will hear new cases on limits of personal jurisdiction [Bristol-Myers Squibb v. Superior Court, Tyrrell v. BNSF Railway Company, earlier on BNSF, and more from Michelle Stilwell, WLF on that case]
- SCOTUS hears oral argument in “Slants” derogatory trademark First Amendment case [Mark McDaniel and Meredith Bragg/Reason, Jacob Sullum, earlier]
- Court accepts case on patent venue that could threaten preferred forum-shopping supremacy of Eastern District of Texas [TC Heartland v. Kraft Foods Group, brief by 56 law and economics professors]
- Now taking senior status, Judge Diarmuid O’Scannlain has ranked among MVPs of federal bench in part through his skill at flagging error by his Ninth Circuit for high court review [Ethan Davis and Daniel Sullivan, National Review]
- Supreme Court will hear “Slants” trademark case, which could prove relevant to Washington Redskins controversy [Eugene Volokh on Lee v. Tam]
- Ooh: Oregon Sen. Jeff Merkley says SCOTUS vacancy being “stolen” which “delegitimizes” any nominee [Roger Pilon] More on President-elect Trump and the Supreme Court: Jeffrey Rosen/Politico, Josh Blackman/National Review;
- “Whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice.” [Microsoft v. Baker]
- Are malicious prosecution claims cognizable under the 4th Amendment? [Damon Root, Reason on Manuel v. City of Joliet; more, Glenn Harlan Reynolds/Cato Supreme Court Review]
- “Justice Kennedy: The Once and Future Swing Vote” [Ilya Shapiro] Justice Sam Alito’s speech to Federalist Society lawyers looks to post-Scalia era [Adam Liptak, NYT]
- “Supreme Court Justices Push Back On Government’s Expansive Insider-Trading Theories” [Daniel Fisher, earlier on Salman v. U.S., Thaya Brook Knight and related video]
A bad decision that ignores the likely application of the First Amendment, seizing valuable intellectual property without compensation essentially because the government disapproves of its content. [Ilya Shapiro, USA Today, earlier on Redskins trademark battle, another pending case on “disparaging” trademarks and more]
- SCOTUS grants certiorari in three First Amendment cases, bringing term’s total to four so far: National Institute of Family & Life Advocates v. Becerra (challenge to California law requiring “crisis pregnancy centers” to convey state-prescribed messages), Lozman v. Riviera Beach (scope of First Amendment claims for retaliatory arrest), Minnesota Voters Alliance v. Mansky (ban on political apparel at polls) [Ronald K.L. Coleman, Amy Howe/ SCOTUSBlog, Eugene Volokh, Howard Wasserman]
- Roy Moore threatens Alabama newspapers with legal action, newspapers fire back with preserve-your-records-or-risk-sanctions warning [Erik Wemple, Washington Post]
- Section 230 at risk: proposed amendment to trafficking bill doesn’t go nearly far enough to remove chilling effect on online speech [R Street coalition letter, Mike Godwin, The Hill, earlier]
- “Judge Smacks Down Another Anonymous Cop’s Lawsuit Against Black Lives Matter” [Tim Cushing, TechDirt; earlier on Baton Rouge suits]
- Asian-American band gets their trademark “The Slants” — fought over in a case that went to the Supreme Court — registered at last [Eugene Volokh, earlier]
- “Sen. Feinstein’s Threat to ‘Do Something’ to Social Media Companies Is a Bigger Danger to Democracy Than Russia” [Scott Shackford, Reason]
- Even if troublesome for other reasons, discussion of nominees’ religious beliefs does not violate the Constitution’s Religious Test Clause [my post at Secular Right]
- I’m quoted toward the end of this report: Congress rather than courts likely to get ultimate say on defining “emoluments” [NPR with Peter Overby, audio and related article, earlier]
- Convention of the States? Federalist Society panel video with Thomas Brinkman, Jennifer Brunner, David Forte, Matt Huffman, Larry Obhof, Matthew Byrne [earlier on Article V conventions]
- Supreme Court opened — and should now close — “dual sovereignty” exception to rule against double jeopardy [Ilya Shapiro, Cato]
- Encyclopedia of Libertarianism, 2008, has articles on the U.S. Constitution by David Mayer and on the rule of law by Norman Barry;
- Following big First Amendment win in Slants case Matal v. Tam, feds drop effort to void trademark of Washington Redskins [Ilya Shapiro, Eugene Volokh, earlier]
Did Cato just file the most not-safe-for-work amicus brief in Supreme Court history? It’s on the question (Lee v. Tam) of whether the government can deny trademark protection to words and phrases that are slurs and, in so doing, gather to itself the task of defining what is a slur. The case, involving the Asian-American band The Slants, is widely seen as foreshadowing the eventual outcome of the challenge to the Washington Redskins’ trademark.
Joining Cato as amici: humorist and Cato fellow P.J. O’Rourke; Profs. Nadine Strossen, Clay Calvert, and Erik Nielson; the Reason Foundation; Frederick, Md.’s Flying Dog Brewery and famed artist Ralph Steadman, whose work adorns its labels; and the Comic Book Legal Defense Fund. It’s signed by Ilya Shapiro and Thomas Berry and written with Trevor Burrus’s assistance.
NSFW warning: as hinted, this brief uses obscene and disparaging words and phrases by the dozens and dozens, so be forewarned.