Matal v. Tam and offensive speech

This week's case of Matal v. Tam was a challenge to U.S. Patent and Trademark Office rules brought by a California rock band known as The Slants.

• The US PTO will not register trademarks that are “disparaging” to “persons,” because of a rule in the 1946 Lanham Act. What this means is largely left to the discretion of the individual patent examiner. There is, however, a policy that it doesn't matter if the person seeking to register the trademark is a member of the disparaged group of persons. The Slants's schtick is “reclaiming” stereotypes about Asian-Americans; doesn't matter to the PTO, who denied their trademark application as disparaging.
• Simon Tam (frontman of the band) claimed this was a violation of his free speech rights. Conspicuously missing from this case, as with many such test cases, is an explanation for how a minor rock band can afford to go all the way to the Supreme Court. (Amicus brief by the Redskins.)
• I guess some people are just really passionate about protecting their rights, not that I would understand that.
• Query what “disparaging to persons” means. Tam attempted to argue that the regulation should be interpreted to prohibit only trademarks that disparage individual persons. Under this interpretation, you can disparage groups like Asian-Americans, but you can't name your hardware store “The Anti-Walmart,” or your bar “Trump Sucks.” The court found that there was no evidence either in the text or legislative history for this reading.
• Isn't this whole issue why defamation law exists? Should the government really be in the business of protecting people's hurt feelings? Several cases in this area about people who want to use religious trademarks for wine, such as Agnus Dei wine or Madonna wine. Is preventing blasphemy a legitimate function of our government? I of course think not.
• Anyway. The government's best argument is that trademark registration is not individual speech, but government speech, meaning that the First Amendment doesn't apply. No one is putting The Slants' members in prison for using that name; they just can't have a registered trademark.
• It sounds odd to say that the First Amendment doesn't apply at all to government speech, doesn't it? But if you think about it, it would make no sense otherwise. The government speech doctrine is why the government can fund anti-smoking messages without also funding pro-smoking messages, or why the National Endowment for the Arts can fund some artworks but not others. So far so good.
• More debatable cases of government speech: can the government allow certain monuments but not others in a public park? Can the government allow certain messages and not others on license plates? In both cases, yes.
• But the Court is concerned about “dangerous misuse” of this doctrine. License plates and public parks are under the control of the state and identified in the public mind with the state; not so trademarks.
• If trademark registration is government speech, it's incoherent. There are both pro- and anti-abortion trademarks, pro- and anti-capitalist trademarks. How can the government intend to send both messages? I think this is a weak argument. Why can't government speech be incoherent? Private individuals certainly speak incoherently at times.
• Does private speech become government speech just because the private speech benefits from a government program? Think of copyright law. Can the government refuse copyright protection to books it doesn't like on the grounds that copyright registration is mere government speech? Surely being unable to copyright books would be a still infringement of speech rights, even if writers retained the ability to publish uncopyrighted works.
• Another problem here is the amount of discretion given to the patent examiner. One reason The Slants's trademark application was denied was “ the fact that several bloggers and commenters to articles on the band have indicated that they find the term and the applied-for mark offensive.” Dear God, please let's not make free speech rights dependent on what people on the Internet find offensive. If this were the law, I'm pretty sure staging Othello would be a felony.
• Therefore, trademarks are private speech, and banning disparaging trademarks is unconstitutional viewpoint discrimination. “Giving offense is a viewpoint,” and--I say this at every opportunity--speech may not be prohibited merely because it is offensive.

Packingham and censorship of sex offenders

Let's talk about Packingham v. North Carolina. May states constitutionally ban convicted sex offenders from using social media? Some points that came up:

• Social media is an important part of modern life. The President uses Twitter to convey breaking news--this law would ban sex offenders from reading the President's Twitter feed. Isn't that excluding sex offenders from fully participating in our polity as informed citizens? Who's going to tell Packingham about the latest dead celebrity?
• On the other hand, there's a lot of precedent for denying people rights after they have been duly convicted of crimes. Going to prison means losing many rights. Not only that, after release you may face indefinite or lifetime loss of certain rights, like the right to vote or right to bear arms. You can lose the latter after only a misdemeanor conviction or even a restraining order! So if we don't sympathize with the guy who slaps his girlfriend and permanently loses his Second Amendment rights, why should we sympathize with the sex offender who loses access to Facebook?
• It's legally irrelevant, but since I brought up sympathy, let's have a moment of sympathy for the "sex offender" in this case, who was put on the registry after having sex with a 13-year-old when he was 21, fifteen years ago. A bad decision, but not bad enough to justify being on a sex offender registry.
• A big reason why Packingham won (spoiler) was the overbreadth of the law. It banned "gaining access to" social-networking sites that allow minors, no matter what you do on those sites, even if you have zero contact with minors, and even if you never post any comment. (Packingham got in trouble after a Facebook post in which he attributed getting out of a couple of traffic tickets to being specially favored by Jesus. I'm no theologian, but I would think once you're a registered sex offender you'd give up on the idea of being favored by God.)
• The law also categorized any site as a "social-networking site" if it allows users to comment and does not ban under-18 users. So not just what you or I would think of as social-networking sites, but most news sites, blogs, job sites, and many commercial sites like Amazon that allow user reviews.
• So a law meant to prevent sex predators from seducing children online ends up banning people from buying shoes on Zappos, looking for apartments on Craigslist, or reading WashingtonPost.com. If the person who wrote the law had drafted more cautiously, this law would have survived as a narrowly tailored "don't contact strange kids online" rule. Why don't people hire me to write these laws? As it is, the law was struck down as an unconstitutional restriction on speech.  

Don't use the courts to force people to like you

Social approval! We all want it. And we're never going to get it--at least, not as much as we want. Whether the people around you approve of you is not within your control. Well, some of it is--you can take some voluntary actions to improve your chances of approval. Being nice and tipping and taking showers helps. But that will never guarantee you get the approval you want.

Why not? Part of it is pure luck--or “privilege,” grudgingly. Part of it is the “you can't please everyone” effect. Being upper-class is generally good, but not if you want to fit in in a lower-class environment. Some people resent immigrants; others think Americans are dumb. Some people will hate you for being black, and others for being white. You can be fat-shamed or skinny-shamed. So, fundamentally, we have to live in a world in which, no matter who you are, some people will hate you for no good reason. A woman has to navigate a world with misogynists and rapists in it. An atheist has to accept that many people think he's going to burn in hell. And gay people have to live with the knowledge that many of their neighbors disapprove of their sexual and romantic relationships. For the person who finds these facts upsetting, I recommend Agent Cooper's mantra.

FBI Agent Roger Hardy: They're liable to extradite you for murder and drug trafficking.

Special Agent Dale Cooper: These are things I cannot control.

This is my problem with the current gay rights movement. As a libertine and libertarian, I have of course been strongly in favor of gay rights as long as I can remember. When gay marriage was banned, and, earlier, when gay sex was illegal, there was a crying need to fight so that gay people can get what they deserve.

But now? Every time I read about a new gay rights case, it's, well, bullying. Suing the small business owner who refuses to sell flowers or cake or custom-printed T-shirts for gay weddings or gay causes. These are not cases about getting gay people what they deserve-- the same privileges and rights the rest of us enjoy. This is using the courts to force the illusion of social approval.

Not even the plaintiffs claim that any person has actually been damaged in these cases. One litigant in a right-to-wedding-flowers case claimed that his actual damages were some $17, or the cost of the gas he burned when he had to drive to a different florist. In another case involving a transgender high school student, the biologically male student wanted to use the girls' locker room; the school wanted him to use the boys' room, and offered the obvious compromise; a private changing room for this student. The offer was rejected--proving, beyond a doubt, that the transgender bathroom controversy is not about providing safe and decent bathroom facilities for transgender people. It's about forcing society to accept the transgender theory of gender. This is completely wrong. Partly, of course, I think it's wrong because my concept of gender is different. But it would be wrong to use the courts to force people to accept my gender theory too! I just have to live in a world in which most people are terribly, terribly, wrong, and, rather than being something the courts ought to correct, this seems like the human condition.

Litigating for social approval is not what the courts are there for. Social approval is not something gay or transgender people deserve, because desserts don't make sense in this context, because social approval is inherently arbitrary.

I wonder if the gay rights advocates agree with me on this point. Is it that they think of approval as something that you are entitled to, if you do x and y? In my life, I've gone from being one of the most stigmatized, powerless and low-status people in our society, to now being reasonably successful and respected. From having to ask dumb people for permission to go to the bathroom to having a job that largely consists of telling smart people what to do. And yet, I feel like the same person. It creates some cognitive dissonance that I've never really known how to communicate. But, other people have not had this experience. If you've always had people approve of you if you did the “right” thing, I imagine you might come to think of approval as something you “deserve.”

Another possibility is that gay rights advocates think of these cases not as means of redressing specific wrongs done to the plaintiffs, but rather as a means of shifting popular opinion. So it's not about fighting for what someone deserves, but rather conducting something of a morality play in which the state of the law is merely a public relations tool.

I would be interested in hearing your opinion, especially if you agree with these gay rights cases. Do you think social approval is something that people deserve? Or do you think these cases are a PR tool? Or do you think our disagreement resides somewhere else?

Graphic labels on cigarettes packages

Forcing cigarette companies to put graphic warning labels, including health warnings, pictures of diseased organs, and the 1-800-QUIT-NOW number, on cigarette packages, is a violation of the First Amendment, according to a recent and totally correct ruling by the DC Circuit (pdf).

You might wonder why this is so, since cigarette companies are already required to put warning labels on packs, while alcohol manufacturers have other warning labels, and all makers of packaged food are required to list ingredients, calories and so forth. The legal reasoning behind this regulation is that the government had a legitimate interest in making sure that consumers are accurately informed about the contents and risks of the food, beverages and cigarettes they consume.

Now, there is nothing in the Constitution restricting the ability of government agencies to campaign against smoking, taking the public stand that the risks of smoking outweigh its benefits. The libertarians among us might think that this is not a proper use of the power and money of the state, but the libertarians among us are often disappointed. However, the state still does not have the right to force any individual or company to express a certain opinion. The federal district court and DC Circuit agree that graphic labels and the QUIT NOW message go beyond informing consumers about health risks and amount to discouraging smoking. (In fact, the FDA made no secret of the fact that it hoped the labels would nudge people to quit.) This "ideological" message is one the government cannot force a company to send.

The Companies contend that, to the extent the graphic warnings go beyond the textual warnings to shame and repulse smokers and denigrate smoking as an antisocial act, the message is ideological and not informational. “[B]y effectively shouting well-understood information to consumers,” they explain, “FDA is communicating an ideological message, a point of view on how people should live their lives: that the risks from smoking outweigh the pleasure that smokers derive from it, and that smokers make bad personal decisions, and should stop smoking.”

No one doubts the government can promote smoking cessation programs; can use shock, shame, and moral opprobrium to discourage people from becoming smokers; and can use its taxing and regulatory authority to make smoking economically prohibitive and socially onerous. And the government can certainly require that consumers be fully informed about the dangers of hazardous products. But this case raises novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest—in this case, by making “every single pack of cigarettes in the country [a] mini billboard” for the government’s anti-smoking message.

The so-called "warning labels" are not really warning at all, the Court held, but propaganda. Some convey no relevant facts, and others might be deceptive: an image of someone smoking through a tracheotomy hole might give the inaccurate impression that a tracheotomy is a common result of smoking.

Many of the images do not convey any warning information at all, much less make an “accurate statement” about cigarettes. For example, the images of a woman crying, a small child, and the man wearing a T-shirt emblazoned with the words “I QUIT” do not offer any information about the health effects of smoking. And the “1-800-QUIT-NOW” number, when presented without any explanation about the services provided on the hotline, hardly sounds like an unbiased source of information. These inflammatory images and the provocatively-named hotline cannot rationally be viewed as pure attempts to convey information to consumers. They are unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting.

I find myself saying, as often before, thank God for the First Amendment. Cigarette companies in other countries are already forced to use graphic "warning" labels. Now, if only we still had the Fourth, Fifth and Sixth Amendments...

Why object to the execution of the stupid?

The latest liberal outrage is the execution of a murderer, Marvin Wilson, who, according to his lawyers and one IQ test but not others, has an IQ of 61, below the threshold of 70 which Texas law takes as the minimum IQ needed to take responsibility for one’s actions.

For a while I was baffled, since many people seemed outraged by this without
 really saying why.  After some thought, I’ve decided this is not really about the death penalty.

Rather, it seems to me like a difference of opinion between those who believe judicial punishments exist to punish “guilt” (whatever that means) and those who believe the purpose of the judicial system is to protect law-abiding citizens.

If you fall into the former camp, then, if the criminal is too stupid to know what he was doing, if he is young, if he is uneducated, if he is poor, and so forth, his guilt is less. He should be punished either not at all or else the bare minimum amount. We should favor more humane prisons to promote rehabilitation. The death penalty should either not be used at all, since it precludes rehabilitation, or it should only be used for older, richer, more educated, and higher-IQ criminals (of which there are very few).

If you fall into the second camp, you will be inclined to say a murderer is a murderer is a danger to society. This danger should be eliminated regardless of hard-to-ascertain metaphysical “guilt”. The seriousness of the crime matters, but not the personal characteristics of the victim. If you favor more humane prisons, you will do so to decrease recidivism. You might favor the death penalty on grounds of efficiency, or you might oppose it because you think it does not deter.

Note, of course, that these two broad schools of thought are not correlated with opposing or supporting the death penalty. That’s a whole ‘nother issue involved in the Wilson case. I suspect that most people who think a low-IQ man should not be executed also think that no one should be executed–they focus on Wilson because he’s the easy propaganda case. (Just as most medical marijuana advocates favor legalizing all marijuana, but they focus on medical uses for the easy propaganda.)       

NB: Difference between rehabilitation and preventing recidivism. Preventing recidivism means ensuring that criminals do not reoffend–this might mean changing hearts and minds, or scaring criminals with the threat of more or worse punishment, or preventing their contact with other or worse criminals in prison, or keeping drugs off the streets, or improving economic opportunities for low-income men, and so forth. Rehabilitation focuses on changing the criminal’s personality, so that he will understand that crime is bad.

Worst Supremes decision ever

The worst Supreme Court decision ever, among those which haven't been overturned, is Coker v. Georgia, decided 7-2, my God. It held that it's unconstitutional under the 8th amendment to apply the death penalty for rape. (Incidentally, the criminal in question was not only a rapist, but a murderer who had escaped the death penalty once already.)

What led to this ridiculous miscarriage of justice? First, the Court at the time was all male, which may have led to their conclusion that rape is not a 'serious injury'. Secondly, acc. to Wikipedia, two justices voted as they did due to their belief that the death penalty is cruel and unusual under all circumstances. Male bias combined with liberal bias, and I doubt it will ever be overturned.

The second worst decision is Trop v Dulles, which held that the 8th amendment prohibits depriving someone of his citizenship (for the crime of desertion, in this case), because, according to Earl Warren, "denationalization as a punishment is barred by the 8th amendment, as it is the total destruction of the individual's status in organized society".

The dissent rightly questioned whether denationalization is a more severe punishment than murder.

I personally think exile or denationalization is an unjustly neglected punishment in our modern world. There are so many people (many murderers and thieves and all rapists) who don't belong in my society. I would be OK with killing most of them, but the trend of public opinion is against me. Why not exile? It's not cruel; it's giving them a new beginning, far from me. Europe will take them. Or they can go to Somalia and be as lawless as they like.