It was exciting last Friday, arguing the appeal of the THE SLANTS*, at the Court of Appeals for the Federal Circuit! A little too exciting, so much so that, for a moment there, I was — the Recorder explains — actually my own worstest enemy!:
At the Federal Circuit, Tam and attorney Ronald Coleman are swimming against 34 years of precedents [sic]. But it sounded from Friday’s argument as if at least one judge wants to reconsider them. Judge Kimberly Moore described the seminal decision upholding Section 2(a) of the Lanham Act as outdated, cursory and a candidate for en banc review in light of “an immense evolution of Supreme Court jurisprudence on this point.”
Coleman at times seemed to be his own worst enemy during the 30-minute argument. The Goetz Fitzpatrick litigator sought to frame the case as one of administrative law, and had to be coaxed into making the constitutional case. When Judge Alan Lourie suggested that rejecting a trademark doesn’t limit speech, but actually expands it, Moore tried to help Coleman. “I would think you wouldn’t agree with that,” she told him. “Just to help you out a little bit, say no. Just say no.”
“I would agree with it,” Coleman told Lourie.
“You agreed with what he just said?” asked Moore.
Finally, Coleman got the hint. “I would agree that this court has every opportunity to make the First Amendment point,” he said. “I do believe this court has the opportunity to revisit its own precedent.”
Kind of. It’s not that I didn’t get the hint. Read More…