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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

by 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.

by stvswn 9y ago

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.