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This is Not Censorship

Originally posted 2005-03-07 07:05:17. Republished by Blog Post Promoter

52-funniest-thingsEditor and Publisher reports about the canning (“resignation” following a “suspension”) of the tasteful gent who ran that front-page story that New Yorkers saw staring out of newspaper boxes:  in the New York Press, “New York’s Premier Alternative Newspaper.” Hey, what happened to the Village Voice?! The Voice, it appears, is actually “New York’s most influential must-read alternative newspaper.” Both papers (the premier and the must-read) are free.

Anyway. Guy was fired because the publisher needed a goat to sacrifice when the story blew up. (I was about two blocks from St. Patrick’s Cathedral when I first saw the paper. There are over a million Catholics in New York City.) That’s the publisher’s right. No government made him do it; the First Amendment is not implicated. So let’s just don’t go there.

UPDATE:  Heh.

Plugging leaks

Originally posted 2010-11-23 15:45:17. Republished by Blog Post Promoter

[Here’s a blast from the past — RDC]:  In the New York Times:

In a move that legal experts said could present a major test of First Amendment rights in the Internet era, a federal judge in San Francisco on Friday ordered the disabling of a Web site devoted to disclosing confidential information.

The site, Wikileaks.org, invites people to post leaked materials with the goal of discouraging “unethical behavior” by corporations and governments. It has posted documents said to show the rules of engagement for American troops in Iraq, a military manual for the operation of the detention center at Guantánamo Bay, Cuba, and other evidence of what it has called corporate waste and wrongdoing. . . .

On Friday, Judge Jeffrey S. White of Federal District Court in San Francisco granted a permanent injunction ordering Dynadot, the site’s domain name registrar, to disable the Wikileaks.org domain name. The order had the effect of locking the front door to the site — a largely ineffectual action that kept back doors to the site, and several copies of it, available to sophisticated Web users who knew where to look.

Very interesting. Is the fact that the remedy in the order itself was fairly ineffectual mean that the court was willing to make a pro forma but not really meaningful gesture here? Or is this the camel’s nose poking through the tent of prior restraint?

I am not a purist on this topic.

UPDATE:  How far we’ve come.

Universal Declaration of American Rights

Originally posted 2005-09-05 20:23:57. Republished by Blog Post Promoter

Derek Slater of the EFF’s Deep Links blog is unhappy — hat tip to Donna Wentwirth — about “general search warrants” being issued in India to bring the file-sharing crusade to those ruddy-golden shores:

These kinds of warrants are ripe for abuse. That’s why they’re prohibited in this country under the Fourth Amendment, which was prompted by British abuses of power during colonial times. The MPA has the right to go after those suspected of infringment all around the globe, but it should be ashamed of using tactics that ignore basic civil liberties.

Really? From what I read, since a few years ago India has been a sovereign country with its own laws and constitution, and a democracy as well. For some reason, in its wisdom India decided not to replicate the U.S. Constitution. It’s astonishing to me that anyone would suggest that anyone with a legal beef in India should unilaterally adhere to abstract principles of “basic civil liberties,” or those enshrined in the constitutions of other countries, as part of its legal strategy. It’s also quite a dollop of legal ethnocentrism.

It’s really not as complicated as all that, however. Slater simply doesn’t like the plaintiff in these cases — the Motion Pictures Association — nor its litigation goals. That’s what is called “outcome-based” legal argumentation — I don’t like the result so I’ll cook up a new pseudo-principle of law to get me an better one. I hope you’ll excuse me for assuming that no one is about to suggest, in adherence to this new international legal principle, that “the defendants in the Indian MPA litigation should volunteer to comply with the voluntary disclosure rules of Federal Rule of Civil Procedure 26(e), which was enacted because Congress and the Supreme Court believed there was excessive gamesmanship in the discovery process.”

But Ron, there’s a difference between the Federal Rules of Civil Procedure and the Fourth Amendment, for heaven’s sake!

Not in India there isn’t!

Now, there are plenty of real issues to argue about, and I tend to agree that the MPA is going about this all wrong. But fuzzy-headed simulations of legal or constitutional arguments are not going to win the day with anyone.

Jews for Jesus* v. free speech: update

Originally posted 2012-12-04 12:56:40. Republished by Blog Post Promoter

The troublesome “Jews for Jesus” blog is still around, after some people had the impression that perhaps Jews for Jesus, Inc. had been succesful in shutting it down. The J4J Whistleblower is still feeling kind of conspiratorial, writing:

Take your time to read through my previous blogs and the points raised. In one of my earlier blogs I pointed out that it takes time to sort through everything to realize what is going on. My previous post to this one looks at the actual text of Jews for Jesus’ lawsuit and points out what they really want. You’ll find this is in line with Susan Perlman’s comment that Jews for Jesus believes it has a right to how their organization will be represented on the internet. That explains why they are only using this blog as a stepping stone to have Google remove any blog with the name “jewsforjesus” in it. An astute observer on a legal blog pointed out that the likely target is www.exjewsforjesus.blogspot.com.

Harrumph. I couldn’t find that astute observer — Whistleblower is quite stingy with the hyperlinks for a blogger — but if that were true, it would be another blow inflicted on free speech by Jews for Jesus with the help of the courts. Quite ironic considering that this group has actually extended free speech protection in a number of decisions, including one in the U.S. Supreme Court, where its own speech was threatened.

But that sort of irony is already old and tired, isn’t it? It must be, because this story is being fairly well ignored — as the Jews for Jesus v. Brodsky case was — by the usual suspects in the free speech department whose ox, for some reason, doesn’t ever appear to be gored when Jews for Jesus is doing the goring. In 1998, Steve Brodsky’s requests for amicus submissions in the Third Circuit were blown off by both the New Jersey ACLU and the Electronic Freedom Foundation, without any real explanation, for example. Here too the EFF has been silent about this case, as have been the “copyfighters” at Corante.com. I don’t know why now, as I didn’t know why, then. Maybe if Steve Brodsky or the Whistleblower published pornography or scandalous charactures of Dick Cheney or were uploading music files the self-appointed guardians of free speech would have something to say about what’s going on here.

Yes, the old irony is old news. I guess it’s just as well, anyway, because in the area of free speech, now we have the all new irony!

Or is irony just not the right word for plain old cynicism? Well… don’t ask me!

*(Sour grapes warning! But if you can stand the taste, come on in; the dishing’s fine!)

UPDATE: Thanks to Dean for the link. I think that one may criticize my analysis above by suggesting that because of my own personal interest in this case, I am also guilty of the “whose ox is being gored?” syndrome. This may be true, but then I do not claim a comprehensive bailiwick, as the would-be guardians of free speech on the Internet do. I am just one lawyer who has had a few clients with interest in these matters. But I will acknowledge that the experience of representing Steve Brodsky against Jews for Jesus, Inc. and The National Debate against the New York Times has affected my own views, which formerly were biased in favor of trademark and copyright holders — that, and getting beaten up on daily basis for several months on the CYBERIA-L list, largely at the hands of Mike Godwin! So you know — we grow, we learn…

Little McCain Feingolds and Their Allies

Originally posted 2013-04-12 12:20:03. Republished by Blog Post Promoter

Via Instapundit, Ryan Sager writes about what happens when “campaign finance laws” (including state law versions of the McCain-Feingold Anti-Sedition Act) are used to literally shut down the exercise of First Amendment rights in free political speech — typically when the speaker is on the right.

Sager has been on this story for a while. Where are all those self-described civil libertarians who are obsessed with every kind of acid test for the upcoming Supreme Court nominees except whether the new Justice is at least an even bet to restore the First Amendment? Indeed, where are the self-described First Amendment defenders? From the looks of it, their concerns are everything on God’s green earth — Ward Churchill, “academic freedom,” the right to public obscenity, “global resistance to the war in Iraq,” the Patriot Act — everything but what is really happening to the actual First Amendment.

Enjoy this blog while you can.

“Liberals Against the First Amendment”

Originally posted 2009-04-19 11:33:36. Republished by Blog Post Promoter

Marco Randazza again, this time on naked state-backed censorship at the University of Massachusetts:

university-of-massachusetts-amherst-4f736c5dThe UMass conservative organization, the Silent Majority, publishes a newspaper called “The Minuteman.” The most recent issue of The Minuteman exposed some financial irresponsibility in another student organization, Bridges (an organization that is supposed to spend its funds to tutor minority students), and mocked the organization and its director. The Expose appears on the first page of this document. . . .

The Bridges crew wasn’t too pleased about this, so they engaged in a pretty time-honored UMass tradition: They stole all of the copies of the newspaper that they didn’t want others to read. The UMass student government association responded by calling for the conservative group’s funding to be cut unless they purchased an advertisement in the campus’ main newspaper, The Collegian, apologizing for the above statements. (source)

Despite the fact that the measure violated the First Amendment in two different ways, it still passed. The resolution passed, and when a student senator attempted to introduce his own measure repealing the clearly unconstitutional measure, he was escorted from the senate floor by campus police.

No decency, no shame, not even a hint of self-awareness.  Says the very liberal Professor Randazza:  “Any ‘liberal’ who doesn’t stand up for the Minuteman has no right to complain the next time it is liberal-valued free speech under attack.”

Huh?  What’s a “right”?

The Parody Bomb Goes Off

Originally posted 2014-06-17 16:41:05. Republished by Blog Post Promoter

When it rains, it pours. Via Andrew Sullivan (and reported here too) a report that Volkswagen is going to sue— in the UK — the pair who made that tasteless mock commercial circulating around the Internet in which a suicide bomber detonates himself but the explosion is contained by the well-built Volkswagen. I don’t know anything about UK law on parodies, and I am not sure whether this would be a trademark suit for use (or dilution?) of the Volkswagen trademarks (which would probably lose here) or a copyright suit based on some similar commercial which I have not seen (which theoretically could win here). (See our discussion on what does and does not qualify as a parody here.)

If you’re Volkswagen, you may have to sue first and ask questions later. There are times when, as long as there is a colorable claim (i.e., the markholder does not believe the complaint violates legal ethics or Federal Rule 11 as frivolous) — even though it’s not a likely winner, you’ve got to file to protect the brand and make a public statement where there’s the risk of public outrage. The lawsuit is a way to distance yourself from the use of the mark.

That’s when it’s not frivolous. And it’s when we’re talking about a morally outrageous use of the mark, as opposed to a commercially or politically, religiously, philosophically competitive use — or one where you just plain resent that your property is part of the picture and you weren’t cut in on the profits.

Slippery slopes? That’s why lawyers are paid to exercise judgment.

UPDATE:  Hm.  Maybe the whole story was a dud:

After a week of prevarication [sic], the car giant has decided to go ahead and sue the people behind the advert on the grounds that it was damaging its reputation around the world and falsely linked the VW with terrorism.

“We are taking legal action but because it’s early stages we cannot comment further,” a Volkswagen spokesman said.

But the company privately admitted that it cannot locate Lee and Dan, the London based advertising creative partnership who dreamed up the film, which has been seen around the world via the internet.

“We are prepared to pursue the two individuals but need to locate them to ensure the success of our legal claim,” the company said in a private memo, details of which have been obtained by MediaGuardian.co.uk.

Bloggers aren’t fair game in litigation just because you can

Originally posted 2011-04-11 00:41:06. Republished by Blog Post Promoter

There is really justice in this world, sometimes, reports David Ardia:

A federal magistrate judge in New Hampshire has sanctioned Clifford Shoemaker, a Virginia attorney, for abusing the legal process by issuing a subpoena to Kathleen Seidel.

We really blew this one, blogging wise.  But it could be worse: We could have been Shoemaker, who blew it lawyering wise:

Mr. Shoemaker made no attempt to avoid imposing an undue burden or expense on Ms. Seidel. To the contrary, I find that he sought to burden her by requiring production of every scrap of paper related to autism, her web site, her tax returns, and her communications with the government. He improperly imposes a requirement to create documents, e.g., a list of “names of persons helping, paying or facilitating . . . these endeavors.” The documentation sought is exhaustive. . . .

Shoemaker has not offered a shred of evidence to support his speculations. . . .  [H]e issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly.

Perhaps we are just so used to enduring abusive litigation tactics that judges just yawn at that we are jaded.  (Every time you complain it’s assumed both sides are equally guilty.)  That’s bad.

We used to spend a lot of time lawyering in New Hampshire, actually (doing discovery in a Southern District of New York case).  Must admit we miss that fresh air.

USPTO files application for extension of time for cert in In re Tam (UPDATED)

This post has been updated considerably to reflect related events, which were reported elsewhere, including this thorough rundown at the World Trademark Review, which quotes interesting commentary by our friend and blogger colleague John Welch, who makes the same point at his own TTABlog here concerning the issue of whether an appellate court’s mandate can, upon application by a party, be “recalled.”

The original subject matter of this post had been the PTO’s motion for an extension of time to seek a writ of certiorari from the Supreme Court in In re Tam.  For readers’ convenience I had originally embedded that paper here, but it no longer seems interesting or necessary.

I have replaced it with the most recent party filing in the matter, however:

UPDATE:  Federal Circuit is unimpressed.

“All Criticism of This Website Is Hereby Forbidden”

Originally posted 2014-04-24 11:15:03. Republished by Blog Post Promoter

WizardWizard1Chutzpa!