4 ms·

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 intel

by 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.
    - bmelton 9y ago
      Per Sable v. FCC[1], any restriction that is subject to examination of the content is subject to strict scrutiny. Strict scrutiny, where applied appropriately, would mean that the government is very unlikely to devise a restriction on content without being able to show that the content of the speech being restricted weren't tantamount to incitation, treason, etc. You're correct that Congress may choose not to exercise that power, but they are prevented from being able to exercise that power arbitrarily, and especially not on matters of obscenity or indecency without passing(failing?) the Miller test[2], which this clearly doesn't, and "The Slants" arguably satisfies none of the conditions. [1] - https://en.wikipedia.org/wiki/Sable_Communications_of_California_v._FCC https://en.wikipedia.org/wiki/Sable_Communications_of_Califo... [2] - https://en.wikipedia.org/wiki/Miller_test https://en.wikipedia.org/wiki/Miller_test
      - lisper 9y ago
        No one is disputing that the band has the right to call itself the slants, or any other offensive term they choose to use. But it is far from clear that they should be entitled to trademark protection for it, Sable notwithstanding. (Well, it's clear now, but it wasn't clear yesterday.) The government already exercises a lot of authority to control the content on the public airwaves, I don't see why trademarks should be any different. But I haven't had time to read the opinion yet. Maybe I will find enlightenment there.
        bmelton 9y ago
        I'm honestly convinced that, post-Sable, the FCC is poised to lose should anyone challenge their obscenity provisions, Miller test notwithstanding. Since then though, the FCC has been more prudent with what they go after, and the fines have are low enough that it serves everyone's interests to keep everything de rigueur. NBC doesn't want to have to worry about having to compete with smut on the public airwaves, or having to big against Pornhub in the next spectrum auction. Meanwhile, the FCC of course enjoys the presumption of authority over the airwaves with a quasi-plausible veil of content neutrality.
kefka 9y ago
> Do we want to be in a society where only things deemed non-offensive are protected? Well, offensive to whom? There's obviously "Nigger"... But wait. It's offensive if a white person calls a black person that. But many a time, blacks will call each other that to 'own' the word and reclaim its power. So we have an immediate example of an offensive word that isn't offensive in many cases. Or in recent years, simply asking "Are you a man or woman?" is offensive if they pull the 'not gender binary'-card. Yeah, we can ignore the fact that you either have sperm or eggs, or genetic anomalies that have interesting medical conditions.. But the question in certain groups is "Offensive". Then there's the last group of people who are, what I call, professional victims. I've not seen a conservative one of these yet. They primarily are in the extremist liberal camps, and the smallest innocuous things will set them off in tirades. To them, everything they don't do is "Offensive". And this "Offensiveness" changes as per person. I usually treat these people by ignoring them. You cannot win. (An example of one of them is demanding to have others use some pronoun like hir or zir or zem. And they will get angry if you ask, don't ask, use a different one around other people or... ) Edit: I try for a variant of the Robustness Principle. Unless someone is intentionally mocking me, if they get some term wrong or use no longer "politically correct" terminology, I try to look past that for their underlying idea.
- msie 9y ago
  I've not seen a conservative one of these yet. Ive seen plenty of them. They rail against any sign of diversity as an attack on their white, heterosexual normalcy. Check out the forums on IGN. They are outraged by the sight of a penis in a tv show (American Gods) or a person of colour cast in a leading role.
  - kefka 9y ago
    Well, point made. I've seen a bit of these types, but usually they wore iron cross rings, or white robes (KKK). Even some of the more extremist Christians I know haven't acted quite like that. Yes their preference is very much against homosexuality and more liberal policies of "Do what you want as long as you don't harm others", but I haven't seem them go out of their way like the extremist liberal ones do. I've even been screamed at by some extremist liberal woman because I (a male <shudder>) dared to walk through a door and hold the door open for her, err, hir, err, "it". And note, even if you can't see it, am a bisexual male.
coldpie 9y ago
> Do we want to be in a society where only things deemed non-offensive are protected? There are already many limitations on truly free speech, as there should be. Should this type of speech be limited? It's a valid question. My main objection in this thread was to the specific statement: "This is a win for a free society." It implies that the defense was fighting against a "free society." I'm saying that two people can disagree on this specific matter while both being in support of a "free society." There's no need to polarize this issue in terms of free vs. non-free. The trademark office interpreted the statute one way, the plaintiffs another way, it worked its way through the courts and the decision came down in the plaintiffs' favor, so the trademark office will change its interpretation. The system works. There's no need to villainize the trademark office for disagreeing on the interpretation of a statute that hadn't yet been clarified by the courts.
- oh_sigh 9y ago
  Yes, two people can disagree while still ostensibly supporting the same concept, but it doesn't mean that the two viewpoints are equally supportive of the concept. Some people argue that a hijab is empowering to women, and is a sign of freedom. Some argue the exact opposite. Just because one group says they believe in a given thing doesn't mean they actually do things which promote the thing they claim they support.

by Kalium 9y ago

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.
  - bmelton 9y ago
    Per Sable v. FCC[1], any restriction that is subject to examination of the content is subject to strict scrutiny. Strict scrutiny, where applied appropriately, would mean that the government is very unlikely to devise a restriction on content without being able to show that the content of the speech being restricted weren't tantamount to incitation, treason, etc. You're correct that Congress may choose not to exercise that power, but they are prevented from being able to exercise that power arbitrarily, and especially not on matters of obscenity or indecency without passing(failing?) the Miller test[2], which this clearly doesn't, and "The Slants" arguably satisfies none of the conditions. [1] - https://en.wikipedia.org/wiki/Sable_Communications_of_California_v._FCC https://en.wikipedia.org/wiki/Sable_Communications_of_Califo... [2] - https://en.wikipedia.org/wiki/Miller_test https://en.wikipedia.org/wiki/Miller_test
    - lisper 9y ago
      No one is disputing that the band has the right to call itself the slants, or any other offensive term they choose to use. But it is far from clear that they should be entitled to trademark protection for it, Sable notwithstanding. (Well, it's clear now, but it wasn't clear yesterday.) The government already exercises a lot of authority to control the content on the public airwaves, I don't see why trademarks should be any different. But I haven't had time to read the opinion yet. Maybe I will find enlightenment there.
      - bmelton 9y ago
        I'm honestly convinced that, post-Sable, the FCC is poised to lose should anyone challenge their obscenity provisions, Miller test notwithstanding. Since then though, the FCC has been more prudent with what they go after, and the fines have are low enough that it serves everyone's interests to keep everything de rigueur. NBC doesn't want to have to worry about having to compete with smut on the public airwaves, or having to big against Pornhub in the next spectrum auction. Meanwhile, the FCC of course enjoys the presumption of authority over the airwaves with a quasi-plausible veil of content neutrality.

kefka 9y ago

> Do we want to be in a society where only things deemed non-offensive are protected? Well, offensive to whom? There's obviously "Nigger"... But wait. It's offensive if a white person calls a black person that. But many a time, blacks will call each other that to 'own' the word and reclaim its power. So we have an immediate example of an offensive word that isn't offensive in many cases. Or in recent years, simply asking "Are you a man or woman?" is offensive if they pull the 'not gender binary'-card. Yeah, we can ignore the fact that you either have sperm or eggs, or genetic anomalies that have interesting medical conditions.. But the question in certain groups is "Offensive". Then there's the last group of people who are, what I call, professional victims. I've not seen a conservative one of these yet. They primarily are in the extremist liberal camps, and the smallest innocuous things will set them off in tirades. To them, everything they don't do is "Offensive". And this "Offensiveness" changes as per person. I usually treat these people by ignoring them. You cannot win. (An example of one of them is demanding to have others use some pronoun like hir or zir or zem. And they will get angry if you ask, don't ask, use a different one around other people or... ) Edit: I try for a variant of the Robustness Principle. Unless someone is intentionally mocking me, if they get some term wrong or use no longer "politically correct" terminology, I try to look past that for their underlying idea.

msie 9y ago
I've not seen a conservative one of these yet. Ive seen plenty of them. They rail against any sign of diversity as an attack on their white, heterosexual normalcy. Check out the forums on IGN. They are outraged by the sight of a penis in a tv show (American Gods) or a person of colour cast in a leading role.
- kefka 9y ago
  Well, point made. I've seen a bit of these types, but usually they wore iron cross rings, or white robes (KKK). Even some of the more extremist Christians I know haven't acted quite like that. Yes their preference is very much against homosexuality and more liberal policies of "Do what you want as long as you don't harm others", but I haven't seem them go out of their way like the extremist liberal ones do. I've even been screamed at by some extremist liberal woman because I (a male <shudder>) dared to walk through a door and hold the door open for her, err, hir, err, "it". And note, even if you can't see it, am a bisexual male.

coldpie 9y ago

> Do we want to be in a society where only things deemed non-offensive are protected? There are already many limitations on truly free speech, as there should be. Should this type of speech be limited? It's a valid question. My main objection in this thread was to the specific statement: "This is a win for a free society." It implies that the defense was fighting against a "free society." I'm saying that two people can disagree on this specific matter while both being in support of a "free society." There's no need to polarize this issue in terms of free vs. non-free. The trademark office interpreted the statute one way, the plaintiffs another way, it worked its way through the courts and the decision came down in the plaintiffs' favor, so the trademark office will change its interpretation. The system works. There's no need to villainize the trademark office for disagreeing on the interpretation of a statute that hadn't yet been clarified by the courts.

oh_sigh 9y ago
Yes, two people can disagree while still ostensibly supporting the same concept, but it doesn't mean that the two viewpoints are equally supportive of the concept. Some people argue that a hijab is empowering to women, and is a sign of freedom. Some argue the exact opposite. Just because one group says they believe in a given thing doesn't mean they actually do things which promote the thing they claim they support.