5 ms·

This is a win for a free society

cnnsucks 9y ago
Too bad so few want one.
coldpie 9y ago
I dunno, I think it's something about which reasonable people can disagree. It's not a free speech question, it's an intellectual property rights question. Should the government provide IP coverage for potentially offensive product names? Apparently, yes, but I don't think opponents are very far out on a limb, either.
- SamReidHughes 9y ago
  It's pretty obviously a free speech question when the government is regulating band names.
  - Pfhreak 9y ago
    That's not what's happening. The government was refusing to protect band names. They weren't saying "You can't have that name" they said, "That name is (potentially) offensive, which means we can't protect it."
    - keithpeter 9y ago
      Does this mean that N.W.A. can fill in their acronym? (Friend of mine was a big fan back in the day. We had arguments about the name)
    - scottLobster 9y ago
      TMK the burden of defense is on the trademark holder, not the government. The Trademark simply allows the defense. Given that the government protects many other forms of offensive speech in much the same way I find that rather hypocritical. Should authors be allowed to plagiarize if the content is "offensive"?
    - michaelt 9y ago
      Would you say the same logic should be applied to all intellectual property, or are trademarks special? For example, should copyright laws depend on whether the thing being protected is offensive?
      - icebraining 9y ago
        Careful, now; Pfhreak never said it should not be protected, only that the issue is not "the government regulating band names".
    - stvswn 9y ago
      That was the government's argument and the Court's decision addressed it. Trademarks are not "government speech," they existed before the government -- both at the state level and in Common Law. Your trademark is protected because it is your trademark, not because the government decides to protect it.
    - gnicholas 9y ago
      That is what the government was saying. But a band would have a harder time staying alive if they had no trademark. For example, the band said that you can't get signed by a label if you don't have a trademark on your name. Also, you can't prevent others from selling merchandise bearing your name. So while the government wasn't telling them that they couldn't use the name, the government's desired outcome would have made it more difficult for the band to survive. Same for the Redskins — and how much money do you think they make on merchandise?
      - ergothus 9y ago
        > the government's desired outcome would have made it more difficult for the band to survive True. The govt makes lots of enforcement/promotion decisions, many decisions that make things harder for other people/companies (and easier for others). In fact, if a govt decisions has an absolutely equal impact on all parties, it's probably not a law that does anything. I'm not saying there isn't a free speech issue - just that saying "by refusing to limit free commerce the govt is infringing on free speech" show the two sides of the argument, both reasonable. The govt wasn't refusing to enforce with the intention of HARMING anyone directly (probably), it was trying to avoid taking enforcement action that WOULD harm people. Not specific people, but the protected class of race in this case. If you think otherwise, imagine the hypothetical where this occurs, realize some people think of it this way, and see that it means the disagreement is reasonable. I'm probably 60/40 in agreement with the court decision, but that 40% is because I can see the arguments on the other side as well. Your premise that the harm to the team is a problem doesn't hold up overall: It's a tough concept to accept that _intent_ makes a law valid/invalid. Make voting harder with the intent to combat voting fraud, the law is likely valid. Make voting harder with the intent of disenfranchising a particular group, the law is invalid. A cop shoots someone because they felt threatened, is legal. A cop shoots someone because they want to, it's not legal. Agree that it SHOULD be that way or not, this is pretty well established in the court system for quite a while. Which means a govt decision that hurts someone (not this case, a generic one) because of a non-discriminatory INTENT can be valid, while the same decision made for discriminatory reasons can be invalid because of that intent. There are plenty of other arguments that can be had here (Was this decision intentionally discriminatory? Does refusing to enforce (i.e. not taking action) equate to taking action?) but that it harms the team is not terribly relevant.
- TulliusCicero 9y ago
  What exactly is the downside to the government providing the same IP protection to offensive names that they do to inoffensive ones?
  - coldpie 9y ago
    I have no strong opinions on the matter. I imagine you could read the defense's arguments in this case to find out. SCOTUS Blog may be a good place to start researching.
    - rory096 9y ago
      Would the defense argue for the benefits of withholding trademark protection, or just the constitutionality of doing so?
      - emodendroket 9y ago
        I don't think those questions are as separate as you imagine.
  - tbirrell 9y ago
    It could be misconstrued as granting legitimacy by "officially allowing" the slur.
    - TulliusCicero 9y ago
      The government officially allows marches by the KKK too, but nobody says, "oh, that must mean the government approves of their message!"
      - scintill76 9y ago
        Just call it "de-platforming" when the government denies KKK marches. Then every college liberal will be on board.
- emiliobumachar 9y ago
  It's definitely something about which reasonable people can disagree. But I, for one, am glad to see this limitation to the power of declaring oneself offended.
- Kalium 9y ago
  It's an intellectual property law question based on the emotional reactions of people to speech. It's possible that this is both a free speech case and an intellectual property rights case. Do we want to be in a society where only things deemed non-offensive are protected? Seems maybe a little arbitrary and capricious? Personally, I'd rather ditch most IP entirely, but that's rather a different issue.
  - lisper 9y ago
    There's a big difference between the government letting you use an offensive term, and the government preventing anyone else from using that offensive term because you've trademarked it. Trademarks are not a right under the first amendment, they are a privilege granted under Article I, section 8, paragraph 8.
    - oh_sigh 9y ago
      No, they are not a privilege. That section of the constitution is talking about the power of the congress.
      - lisper 9y ago
        The Constitution grants Congress the power to grant IP protection. Congress can elect not to exercise that power.
        oh_sigh 9y ago
        Yes, the people grant the power to Congress. If Congress chooses to not use that power, then the people can put new congresspeople in office. By your definition, passing laws is a privilege too, because Congress can choose to not do it. Perhaps that's correct usage of the word privilege but I don't really see it
        lisper 9y ago
        I don't really want to quibble over terminology. I don't care what you call it, the point is just that it is not a Constitutional right on the same legal footing as the right (say) free speech.
- DINKDINK 9y ago
  Trademarks are private property. If the government can arbitrarily chose which private property it will enforce, you open up the possibility of rife corruption.
  - deleted 9y ago
    [deleted]
  - ergothus 9y ago
    Whoa! I'm not sure how the government telling OTHER people what they can't do is YOUR private property. There are lots of items that can be used to debate the for/against of the topic: Free Speech vs the government protecting hate speech, if protecting is the same as promoting, the role of government enforcement in commerce, etc. but I can't see "property". In fact, unlike copyrights, the point of trademark is to prevent consumer confusion. It's not something granted to your for YOUR benefit, but rather for the benefit of consumers. Someone can trademark the same name in a different (but potentially related field) if there is no consumer confusion. Likewise, a trademark in an unrelated field can be denied or ruled invalid if it is shown that there IS consumer confusion. (example: Sleep Inns were original McSleep Inns, until McDonalds (the food manufacturer) shut that down. (http://www.nytimes.com/1988/09/19/us/mcsleep-loses-to-big-mc.html http://www.nytimes.com/1988/09/19/us/mcsleep-loses-to-big-mc... - That article is thin, but my understanding is that McDonalds actually used polling to help prove that it was confusing, but that might have been a different case.). You can BENEFIT from this (by marketing your product to build a brand with a positive reputation), but a govt rule that benefits you is not the same as that rule being your property. > If the government can arbitrarily chose which private property it will enforce, you open up the possibility of rife corruption. I'd drop "arbitrarily" from this statement, as it seems a bit circular. The decisions aren't "arbitrary" - the line of what is and isn't "hate speech" is subjective and fuzzy, but almost all of the law boils down to a subjective fuzzy line (the "reasonable person" argument). Unless you're saying that corruption will MAKE it arbitrary, at which point it's not the arbitrariness that makes it potentially corrupt, but the corruption that could make it arbitrary. Drop the "arbitrarily" and I think the statement is fine, even agree with it (though I don't consider trademarks to be property).
- stvswn 9y ago
  Your framing begs the question. The court ruled that the government does not, in fact, "provide IP coverage." You have a right to IP coverage. It is not the government's speech, it is your own. From the opinion: "If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence o rmuffle the expression of disfavored viewpoints."
  - criddell 9y ago
    > From the opinion: "If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints." I have a hard time with this because I can't see how the dots connect. If government grants exclusive use of some term to me, that means you can no longer use the term in particular contexts. That's more stifling than having no protection, isn't it?
    - stvswn 9y ago
      The Court believes it is stifling, yes. The question here is: can the Government engage in viewpoint discrimination? One situation where the Government can engage in viewpoint discrimination is when the Government itself is speaking. In other words, the Government is allowed to have a vieewpoint and express it. It would be crazy if it could not; there would be no way to advocate for policies with the public. In this case, the Government argued that issuing trademarks is "government speech" which is a constitutional law term of art. The Court disagreed and gave a lot of examples of how this is different from when it ruled on "government speech" in the past. Trademarks, the ruled, are private speech that the government happens to register for commercial reasons. They are arguing here that if they were to rule that trademark issuance was "government speech," then the government could simply come up with "stamp of approval" schemes and then issue them only to favored viewpoints. One major example is copyright -- the Court made the point that there would be nothing stopping the Government from not issuing copyrights to books that contain "offensive" material. So, because it happens to be stifling private speech to issue a trademark or to not issue a trademark, the Government can only do it for narrow reasons that survive the very stringent tests the Court has set up. The largest one is that the Government cannot engage in "viewpoint discrimination." They may not prevent speech that is offensive because it happens to offend someone, in other words. This wasn't really in dispute, anyway, as it is well established. The government thought they could apply one of the exceptions -- "government speech" -- and the Court ruled they could not.
- deleted 9y ago
  [deleted]
- dragonwriter 9y ago
  > It's not a free speech question, it's an intellectual property rights question. No, it's a free speech question with regard to intellectual property, to wit, “may government engage in content-based discrimination in deciding the allocation of intellectual property, specifically trademark, rights.”
- natch 9y ago
  Anyone can be offended at anything. People saying "bless you" offends me... does that mean there should be a law against it? No! I support your right to offend me! Please, feel free to say offensive things, and if I am offended, it's my problem, and I'm willing to own that. We all need to grow up. If we live in a society where anything offensive can be legislated, then one group will seize the power to dictate what is considered offensive. Each person should have their own freedom to decide what offends them or not. But they shouldn't be protected from being offended... that would be impossible, ultimately, and society would no longer be free.
  - jshevek 9y ago
    Yes. I'm offended by restrictions on speech. Therefore restricting speech to avoid offending people is logically impossible.
  - slowmovintarget 9y ago
    Aye: http://i.imgur.com/KJy5r2f.png http://i.imgur.com/KJy5r2f.png
- emodendroket 9y ago
  > It's not a free speech question The Supreme Court unanimously disagreed with your perspective. e: c.f. the article > "The disparagement clause violates the First Amendment's Free Speech Clause," Justice Samuel Alito wrote in his opinion for the court. Contrary to the Government's contention, trademarks are private, not government speech."
vowelless 9y ago
Amen to that. Coming from a place with heavy restrictions on speech, it means a lot to me personally that the US continues to lead the charge on not allowing government to restrict speech.

Too bad so few want one.

I dunno, I think it's something about which reasonable people can disagree. It's not a free speech question, it's an intellectual property rights question. Should the government provide IP coverage for potentially offensive product names? Apparently, yes, but I don't think opponents are very far out on a limb, either.

SamReidHughes 9y ago
It's pretty obviously a free speech question when the government is regulating band names.
- Pfhreak 9y ago
  That's not what's happening. The government was refusing to protect band names. They weren't saying "You can't have that name" they said, "That name is (potentially) offensive, which means we can't protect it."
  - keithpeter 9y ago
    Does this mean that N.W.A. can fill in their acronym? (Friend of mine was a big fan back in the day. We had arguments about the name)
  - scottLobster 9y ago
    TMK the burden of defense is on the trademark holder, not the government. The Trademark simply allows the defense. Given that the government protects many other forms of offensive speech in much the same way I find that rather hypocritical. Should authors be allowed to plagiarize if the content is "offensive"?
  - michaelt 9y ago
    Would you say the same logic should be applied to all intellectual property, or are trademarks special? For example, should copyright laws depend on whether the thing being protected is offensive?
    - icebraining 9y ago
      Careful, now; Pfhreak never said it should not be protected, only that the issue is not "the government regulating band names".
  - stvswn 9y ago
    That was the government's argument and the Court's decision addressed it. Trademarks are not "government speech," they existed before the government -- both at the state level and in Common Law. Your trademark is protected because it is your trademark, not because the government decides to protect it.
  - gnicholas 9y ago
    That is what the government was saying. But a band would have a harder time staying alive if they had no trademark. For example, the band said that you can't get signed by a label if you don't have a trademark on your name. Also, you can't prevent others from selling merchandise bearing your name. So while the government wasn't telling them that they couldn't use the name, the government's desired outcome would have made it more difficult for the band to survive. Same for the Redskins — and how much money do you think they make on merchandise?
    - ergothus 9y ago
      > the government's desired outcome would have made it more difficult for the band to survive True. The govt makes lots of enforcement/promotion decisions, many decisions that make things harder for other people/companies (and easier for others). In fact, if a govt decisions has an absolutely equal impact on all parties, it's probably not a law that does anything. I'm not saying there isn't a free speech issue - just that saying "by refusing to limit free commerce the govt is infringing on free speech" show the two sides of the argument, both reasonable. The govt wasn't refusing to enforce with the intention of HARMING anyone directly (probably), it was trying to avoid taking enforcement action that WOULD harm people. Not specific people, but the protected class of race in this case. If you think otherwise, imagine the hypothetical where this occurs, realize some people think of it this way, and see that it means the disagreement is reasonable. I'm probably 60/40 in agreement with the court decision, but that 40% is because I can see the arguments on the other side as well. Your premise that the harm to the team is a problem doesn't hold up overall: It's a tough concept to accept that _intent_ makes a law valid/invalid. Make voting harder with the intent to combat voting fraud, the law is likely valid. Make voting harder with the intent of disenfranchising a particular group, the law is invalid. A cop shoots someone because they felt threatened, is legal. A cop shoots someone because they want to, it's not legal. Agree that it SHOULD be that way or not, this is pretty well established in the court system for quite a while. Which means a govt decision that hurts someone (not this case, a generic one) because of a non-discriminatory INTENT can be valid, while the same decision made for discriminatory reasons can be invalid because of that intent. There are plenty of other arguments that can be had here (Was this decision intentionally discriminatory? Does refusing to enforce (i.e. not taking action) equate to taking action?) but that it harms the team is not terribly relevant.
TulliusCicero 9y ago
What exactly is the downside to the government providing the same IP protection to offensive names that they do to inoffensive ones?
- coldpie 9y ago
  I have no strong opinions on the matter. I imagine you could read the defense's arguments in this case to find out. SCOTUS Blog may be a good place to start researching.
  - rory096 9y ago
    Would the defense argue for the benefits of withholding trademark protection, or just the constitutionality of doing so?
    - emodendroket 9y ago
      I don't think those questions are as separate as you imagine.
- tbirrell 9y ago
  It could be misconstrued as granting legitimacy by "officially allowing" the slur.
  - TulliusCicero 9y ago
    The government officially allows marches by the KKK too, but nobody says, "oh, that must mean the government approves of their message!"
    - scintill76 9y ago
      Just call it "de-platforming" when the government denies KKK marches. Then every college liberal will be on board.
emiliobumachar 9y ago
It's definitely something about which reasonable people can disagree. But I, for one, am glad to see this limitation to the power of declaring oneself offended.
Kalium 9y ago
It's an intellectual property law question based on the emotional reactions of people to speech. It's possible that this is both a free speech case and an intellectual property rights case. Do we want to be in a society where only things deemed non-offensive are protected? Seems maybe a little arbitrary and capricious? Personally, I'd rather ditch most IP entirely, but that's rather a different issue.
- lisper 9y ago
  There's a big difference between the government letting you use an offensive term, and the government preventing anyone else from using that offensive term because you've trademarked it. Trademarks are not a right under the first amendment, they are a privilege granted under Article I, section 8, paragraph 8.
  - oh_sigh 9y ago
    No, they are not a privilege. That section of the constitution is talking about the power of the congress.
    - lisper 9y ago
      The Constitution grants Congress the power to grant IP protection. Congress can elect not to exercise that power.
      - oh_sigh 9y ago
        Yes, the people grant the power to Congress. If Congress chooses to not use that power, then the people can put new congresspeople in office. By your definition, passing laws is a privilege too, because Congress can choose to not do it. Perhaps that's correct usage of the word privilege but I don't really see it
        lisper 9y ago
        I don't really want to quibble over terminology. I don't care what you call it, the point is just that it is not a Constitutional right on the same legal footing as the right (say) free speech.
DINKDINK 9y ago
Trademarks are private property. If the government can arbitrarily chose which private property it will enforce, you open up the possibility of rife corruption.
- deleted 9y ago
  [deleted]
- ergothus 9y ago
  Whoa! I'm not sure how the government telling OTHER people what they can't do is YOUR private property. There are lots of items that can be used to debate the for/against of the topic: Free Speech vs the government protecting hate speech, if protecting is the same as promoting, the role of government enforcement in commerce, etc. but I can't see "property". In fact, unlike copyrights, the point of trademark is to prevent consumer confusion. It's not something granted to your for YOUR benefit, but rather for the benefit of consumers. Someone can trademark the same name in a different (but potentially related field) if there is no consumer confusion. Likewise, a trademark in an unrelated field can be denied or ruled invalid if it is shown that there IS consumer confusion. (example: Sleep Inns were original McSleep Inns, until McDonalds (the food manufacturer) shut that down. (http://www.nytimes.com/1988/09/19/us/mcsleep-loses-to-big-mc.html http://www.nytimes.com/1988/09/19/us/mcsleep-loses-to-big-mc... - That article is thin, but my understanding is that McDonalds actually used polling to help prove that it was confusing, but that might have been a different case.). You can BENEFIT from this (by marketing your product to build a brand with a positive reputation), but a govt rule that benefits you is not the same as that rule being your property. > If the government can arbitrarily chose which private property it will enforce, you open up the possibility of rife corruption. I'd drop "arbitrarily" from this statement, as it seems a bit circular. The decisions aren't "arbitrary" - the line of what is and isn't "hate speech" is subjective and fuzzy, but almost all of the law boils down to a subjective fuzzy line (the "reasonable person" argument). Unless you're saying that corruption will MAKE it arbitrary, at which point it's not the arbitrariness that makes it potentially corrupt, but the corruption that could make it arbitrary. Drop the "arbitrarily" and I think the statement is fine, even agree with it (though I don't consider trademarks to be property).
stvswn 9y ago
Your framing begs the question. The court ruled that the government does not, in fact, "provide IP coverage." You have a right to IP coverage. It is not the government's speech, it is your own. From the opinion: "If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence o rmuffle the expression of disfavored viewpoints."
- criddell 9y ago
  > From the opinion: "If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints." I have a hard time with this because I can't see how the dots connect. If government grants exclusive use of some term to me, that means you can no longer use the term in particular contexts. That's more stifling than having no protection, isn't it?
  - stvswn 9y ago
    The Court believes it is stifling, yes. The question here is: can the Government engage in viewpoint discrimination? One situation where the Government can engage in viewpoint discrimination is when the Government itself is speaking. In other words, the Government is allowed to have a vieewpoint and express it. It would be crazy if it could not; there would be no way to advocate for policies with the public. In this case, the Government argued that issuing trademarks is "government speech" which is a constitutional law term of art. The Court disagreed and gave a lot of examples of how this is different from when it ruled on "government speech" in the past. Trademarks, the ruled, are private speech that the government happens to register for commercial reasons. They are arguing here that if they were to rule that trademark issuance was "government speech," then the government could simply come up with "stamp of approval" schemes and then issue them only to favored viewpoints. One major example is copyright -- the Court made the point that there would be nothing stopping the Government from not issuing copyrights to books that contain "offensive" material. So, because it happens to be stifling private speech to issue a trademark or to not issue a trademark, the Government can only do it for narrow reasons that survive the very stringent tests the Court has set up. The largest one is that the Government cannot engage in "viewpoint discrimination." They may not prevent speech that is offensive because it happens to offend someone, in other words. This wasn't really in dispute, anyway, as it is well established. The government thought they could apply one of the exceptions -- "government speech" -- and the Court ruled they could not.
deleted 9y ago
[deleted]
dragonwriter 9y ago
> It's not a free speech question, it's an intellectual property rights question. No, it's a free speech question with regard to intellectual property, to wit, “may government engage in content-based discrimination in deciding the allocation of intellectual property, specifically trademark, rights.”
natch 9y ago
Anyone can be offended at anything. People saying "bless you" offends me... does that mean there should be a law against it? No! I support your right to offend me! Please, feel free to say offensive things, and if I am offended, it's my problem, and I'm willing to own that. We all need to grow up. If we live in a society where anything offensive can be legislated, then one group will seize the power to dictate what is considered offensive. Each person should have their own freedom to decide what offends them or not. But they shouldn't be protected from being offended... that would be impossible, ultimately, and society would no longer be free.
- jshevek 9y ago
  Yes. I'm offended by restrictions on speech. Therefore restricting speech to avoid offending people is logically impossible.
- slowmovintarget 9y ago
  Aye: http://i.imgur.com/KJy5r2f.png http://i.imgur.com/KJy5r2f.png
emodendroket 9y ago
> It's not a free speech question The Supreme Court unanimously disagreed with your perspective. e: c.f. the article > "The disparagement clause violates the First Amendment's Free Speech Clause," Justice Samuel Alito wrote in his opinion for the court. Contrary to the Government's contention, trademarks are private, not government speech."

vowelless 9y ago

Amen to that. Coming from a place with heavy restrictions on speech, it means a lot to me personally that the US continues to lead the charge on not allowing government to restrict speech.