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.

Psychosomatic illness 5: how do you pick your symptoms?

What determines the type of psychosomatic symptoms a person experiences? Why is it that one person shows up with seizures, another with a numb leg, another with a paralyzed hand?

Personal life experience is a great molder of psychosomatic illness. People learn, probably in childhood or young adulthood, what sort of symptoms get people attention and care. In addition to genetics and environment, this is why certain families tend to be robust or to be sickly. One family's culture is to downplay sickness and keep a stiff upper lip; another family dwells on, analyzes and magnifies every twinge of pain, and gives the sick person a great deal of deference and respect. Children who experience the serious illness of a sibling or a parent are more likely to develop psychosomatic illness, and tend to develop symptoms similar to those of the physically ill relative. Parents pass on strategies that make life easier, whether that means embracing illness or turning to alcohol, drugs or food for comfort.

O'Sullivan says, Early exposure to chronic ill health can inadvertently encourage illness behavior and, as we have seen, shape how psychosomatic illness presents, with patients often suffering from symptoms they have come across before in others. The tendency to respond to every bodily sensation, rather than ignore them as the majority of us do, may be learned at a very young age. They are reacting to symptoms that others might dismiss, and these reactions serve to heighten the symptoms and awareness of them.

Psychosomatic illness 4: Why denial?

What does it look like (and feel like) when someone refuses to accept a diagnosis of psychosomatic illness?

Often, the person denies the possibility of psychosomatic illness, not just because they want to avoid lowering their status, but because they are consciously not aware of any of the stress or trauma that outside observers can identify in their lives. Psychosomatic symptoms are themselves evidence of denial.

Last year I got sick right after graduating from law school; another illness hit me a few weeks later, after my first triathlon. The second illness was pretty bad, and I had no choice but to spend weeks resting, physically and mentally, something I hardly ever do. No more studying or eating or going to the gym or leaving the house; even a visit to the art museum exhausted me. My husband suggested that law school, the triathlon, and studying for the bar might have stressed me out. Ridiculous, I said. Sure, *other* people might find those things difficult, but not me. Look at the statistics. What do I have to worry about?

This is common. When a person denies the possibility of psychosomatic illness, it may be because they fear lowering their status, but it may be because they are consciously not aware of any of the stress or trauma that outside observers can identify in their lives. Psychosomatic symptoms are themselves evidence of denial.

[Patients say] “I had the most wonderful life until I fell ill. I hardly ever had a reason to feel stress.” And I think, how could that be? I have not had a day in my life with no stress at all. In the absolute rejection of stress in these sufferers is there something for us to learn? Ask somebody with dissociative seizures how they feel, and you may get the answer “tired” or “cold”--neither answer containing anything of their emotional state. Perhaps those who deny stress do so because they do not feel stress, having converted it to something else.

Psychosomatic illness 3

How can you tell if someone's suffering is psychogenic?

You can do tests and give the patient a list of normal test results. But tests are imperfect, and “when a person is paralyzed or blind or suffering from convulsions, it is not difficult to see why they find that a very unsatisfactory explanation.“

Very often you can't prove that a person's distress is psychosomatic, especially with vague symptoms like fatigue, pain and weakness. This is one reason why symptoms like these are often undertreated: I thought for years that my daily headaches were the result of the stress I was under, and so did everyone else; turns out I just needed glasses.

There are some facts that tend to suggest that an illness is psychosomatic, however. You can figure out whether the patient is under unusual stress, and if so, whether she is able to consciously acknowledge it. You can look at the patient's history of mental illness or other unexplained symptoms. This is of course a controversial and inaccurate technique; a person's past mental illness doesn't make it impossible for them to later develop physical illness, and what it can seem like to the patient is “you think I'm lying because I had a mental illness”---the standard experience for people labeled mentally ill.

Another technique is to look at the nature of the symptoms--is the symptom consistent with anatomical and biological facts? What treatments does the symptom respond to? O'Sullivan is lucky in that neurological symptoms can be assessed more easily than most.

Conversion disorders are usually a poor mimic of neurological disease. Symptoms that arise through stress or anxiety are produced in the mind and are dependent on what the sufferer understands about the body and disease. The subconscious mind reproduces symptoms that make sense to the individual's understanding of how a disease behaves. In the absence of detailed knowledge of the body, disabilities that arise in the subconscious rarely obey anatomical rules. Aspects of the examination can be assessed objectively, without the participation of the patient.

So, for example, one patient, worrying about a harmless lump on the right side of her head, developed numbness all done the right side of her body. Because she didn't know that the right brain controls the left side of the body, her subconscious had imagined her symptoms wrong.

Another person was unable to straighten his leg when sitting on the exam table. But he was able to use the same quad muscle to stand up from a chair without using his hands, establishing that the muscle weakness was not physically caused.

A third patient was given an injection of botulinum to treat a painful muscle spasm which had incapacitated her hand. Immediately, she reported she was cured--even though the botulinum only takes effect days later.

In the case of psychosomatic seizures—horrifingly common—the cause of the symptoms can be assessed through monitoring the patient's brain waves 24/7 until the person has a seizure. Normal brain function while a seizure is going on rules out epilepsy.

None of these techniques, however, will convince a patient who is firmly in denial. If I don't have epilepsy, maybe I have some previously unknown seizure disorder. Or my subconscious might come up with a new set of symptoms as soon as the previous symptoms have been found psychogenic. And there's always that old standby, “Medical science doesn't know everything, does it?” Even an experienced and tactful doctor like O'Sullivan finds a number of patients walk away, refusing to accept the diagnosis.

Psychosomatic illness 2b

These psychosomatic illness posts are inspired by a recent book by Suzanne O'Sullivan. I've been waiting for this book for a year, and it was worth the wait. The author, a British neurologist, writes about her experiences with the significant minority of her patients who show up with neurological symptoms, such as seizures, paralysis, or numbness, that turn out to be psychogenic. As a neurologist, she has an impressive array of tools that allow her to rule out organic illness, and as an NHS doctor, she seems to be freer to tell patients the truth and to deny them the tests they ask for than the average U.S. doctor.

Psychosomatic illness is treatable—in fact, “if addressed early enough, many of the manifestations of psychosomatic disorders spontaneously disappear without treatment.” But it's hard to treat--first, because the doctor must consider the possibility of psychosomatic illness, and second, because the patient must accept it. The media's narrative about illness doesn't help. When you read about medically unexplained symptoms, the story is: patient suffers, callous doctors can't help, until finally she finds the one doctor who knows what's going on. Doctors' suggestions that the problem may be psychosomatic are treated as insults directed against the patient. (Examples of this kind of narrative can be found at http://wapo.st/2qxCMm2 and http://bit.ly/2pkcswZ).

A patient in the latter article describes how she resisted suggestions of a psychosomatic illness: “When I found out there was an actual physical thing wrong, it was such a relief, because it meant I wasn't just a hypochondriac or a sissy—it was real." She's happy that she has a physical illness, because having a psychosomatic illness would mean being weak and ridiculous. Because she doesn't want to think of herself as weak or ridiculous, she must have a physical illness. She must reject suggestions of psychosomatic illness and go on doctor-shopping until she gets a diagnosis of physical illness. Of course, it's true that doctors are not perfect diagnosticians, and getting a second or third opinion may be a good idea. But we should consider the possibility of a psychosomatic illness as fairly as we consider the possibility of a physical one. In fact, according to the author, it's more common for a psychosomatic illness to be misdiagnosed as physical than the reverse.

And this harms patients. “The more completely somebody has denied the psychiatric diagnosis and imagined a particular physical paradigm to explain an illness, the more prolonged that illness becomes.”

"The harm that comes from incorrectly labeling a psychosomatic illness as organic, while often underestimated, can be immeasurable. If somebody has been told they have epilepsy and has been allowed to believe that they have a serious, potentially life-threatening brain disease, then this belief alone may be so enmeshed in their mind that it affects their ability to recover...It might lead to toxic unnecessary treatment. It might lead a person to make unnecessary life changes to accommodate the disease. But most importantly, the wrong diagnosis will deny the person the correct treatment. When illness functions as a crutch, it may be difficult to relinquish and something is required to take its place. I have told two patients that they had psychogenic seizures and have come back to the ward a day later to find them sporting crutches. Both patients' seizures went into full remission, but neither could walk unaided for several weeks."

The author is full of compassion and useful advice for how to discuss this subject with patients. "The exact manner in which the diagnosis of a psychosomatic condition is delivered is of pivotal importance. Seizures will often disappear completely immediately after the diagnosis has been given--if it has been given well, that is." Hearing that "The tests are normal. There's nothing wrong with you. Go home" is only going to alienate patients without helping them. Psychogenic illness is something wrong, and something that desperately needs to be treated.

Psychosomatic illness 2

What is psychosomatic illness? Here we arrive at a difficulty, because as soon as I start telling you that X Syndrome is psychosomatic, commenters will jump in to tell me that they know X Syndrome isn't psychosomatic, because their friend had it and she was really suffering and how dare I call her a liar?

This is a stupid objection, but I'm not going to get around to explaining why till later. So, for now, let's focus on less controversial examples of psychosomatic symptoms. In the author's words, “physical manifestations of unhappiness are something we all experience; they are not personality flaws or signs of weakness, they are a part of life.” If you know what it's like to cry, or blush, or tremble, or hyperventilate as a result of emotion, these are all examples of how emotions cause physical changes.

Recall the last time you felt psychosomatic symptoms. Notice that you have a very limited degree of control over these symptoms; even if crying or trembling is very embarrassing for you, you can't make the physical manifestation of an emotion go away any more easily than you can make the emotion go away. This ought not to be news to anyone who feels feelings, but it refutes one common objection to the concept of psychosomatic illness, which is along the lines of "My cousin has chronic fatigue syndrome. I've seen her, and she really suffers! She had to drop out of school and give up her favorite hobby! How can you say she's making it up? Why would she do that to herself?"

Psychosomatic illness indeed causes people pain, and sufferers are not lying or consciously making themselves suffer. It's not a pretend illness; it's an illness. As to why a person would do that to themselves, well, read Freud. Or think back to times when you've wanted to punch a wall, or start an argument, or drink till you pass out, or run till you collapse. Our psyches choose one kind of suffering to avoid another. I rate this objection: Completely Wrong.

Psychosomatic illness 1

Psychosomatic illness is one of the greatest causes of suffering in our society--one that is stigmatized, understudied, underdiagnosed, and undertreated when it is diagnosed. If you've never had a psychosomatic illness yourself, you likely know someone who has. On an average day perhaps as many as a third of people who go to see their general practitioner have symptoms that are deemed medically unexplained (quotes are in italics). For most of us, these symptoms are fairly mild: headache, upset stomach, fatigue. For some, the symptoms become crippling and cinematic: paralysis, seizures, inability to talk, loss of memory.

Almost any symptom we can imagine can become real when we are in distress--tremor, fatigue, speech impairments, numbness. Anything. Almost any function of the body can be affected in almost any way. One day a woman loses speech entirely and the next day she speaks in the voice of a child. A girl feels a lump in her throat and becomes convinced she cannot swallow. Eyes close involuntarily and no amount of coaxing or prising will open them. A boy repeatedly drops the ground; every time he stands, he falls. History has seen every one of these things described. [From a 1764 author]: The colours of the chameleon are not more numerous and inconstant than the varieties of the hypochondriac and hysteric disease.

And yet, many observers as well as sufferers reject the concept of psychogenic illness. I hope that this series of posts will elucidate what psychosomatic is, refute some common objections to the post, and give you an idea of when you should consider the possibility that you have it.