That great, free First Amendment thing (Best of 2017)
First published July 24, 2017.
I was recently, and very briefly, the toast of whatever for my efforts in making the world safe for nasty trademark registrations under the banner of the First Amendment.
But today I got a result, along with my colleague Bruce Godfrey of Jezic & Moyse LLC, in a First Amendment case that got — and will get — a lot less attention, but which is arguably of greater significance — not just with respect to free speech, but for the dismal truth it tells us about the state of the civil legal system and the bar. Start here:
— BeleaguredPopehat (@Popehat) July 24, 2017
I don’t have to explain why it’s important that the courts not let themselves become instruments to silence commentary on issues of public significance, or to enforce the whims of serial “lawfare” litigators. I am happy to have made a contribution to prevention of such a state of affairs, of course.
But I am writing here about baking that free-speech cake that everyone will continue enjoying. I am doing so because I really wanted to write this blog post the day the Supreme Court ruled in Simon Tam’s favor. I didn’t because I’m already enough of a sourpuss as it is. But today I can’t help but note, bitterly, the contrast, and yet a certain commonality, between certain moments in my pro bono work concerning the trademark for THE SLANTS, and my experience representing fellow blogger Patterico — Patrick Frey — in his defense of the litigation brought by Brett Kimberlin.
I have hinted at this before. For the first time, however, in order to make this important point, I am going to tell you what happened when the Federal Circuit, en banc — after reversing itself sua sponte and vacating its affirmance of the PTO in In re Tam — ruled in our favor in December of 2015, invalidating the “disparagement” clause of Section 2(a) of the Lanham Act.
The vultures were calling. Circling. They smelled fresh kill.
Because at this point, anyone not blinded by ideology knew what was happening: The CAFC (“Court of Appeals for the Federal Circuit”) had set up In re Tam to kill Section 2(a) of the Lanham Act before the Redskins could reach the Supreme Court. with their messy, unattractive but constitutionally sound case.
Yes, the Redskins’ constitutional attack on Section2(a) was sound, of course. But booting a 70-year-old feel-good law in favor of the dumb old First Amendment threatened to be awkward and embarrassing (except for the ACLU, which is shameless). In contrast, Simon Tam’s case — where the trademark at issue was being “reappropriated” by a member of the putatively affected group — would be a much easier pill for everyone to swallow to get to the only result seriously conceivable under present First Amendment jurisprudence.
That is why, of course, the CAFC panel rubber-stamped the TTAB’s decision, which should readily have been overturned on administrative law grounds, not constitutional ones. It’s why, sitting en banc, the CAFC affirmed the finding of disparagement again: it had to do so to reach the constitutional issue. Which is fine; I have since then written many times that a First Amendment challenge indeed the only way to kill the beast.
But back to the vultures. I promise to return to Patterico. But you need to see the whole thing.
After the decision in In Re Tam, experienced federal appellate lawyers knew very clearly what was happening before their eyes: In re Tam was going to be a winner. And now after six years of wretched anonymous work by others, from the trademark registration application through the TTAB appeal, the panel appeal in the CAFC and the en banc appeal — now the vultures wanted in on it.
I got calls. Simon Tam got calls. And they all went more or less like this:
You guys were simply delightful in the Federal Circuit, coming out of New Jersey and all that. Charming country lawyers. But now it’s you against the Solicitor General, the Justice Department. And, really, the justices themselves. They don’t like strangers, and they don’t like amateurs poking around at the First Amendment. So you need us.
The Redskins lawyers told us it was time to hand over our case to them, because we couldn’t win it the way they could win it. We could keep our names on the brief if we wanted, but it was time to get out of the way. This could only be handled by Supreme Court Elite — the SCOTUS regulars, former SCOTUS clerks who knew how to play the justices the way no Jersey bumpkins ever could.
To his credit, as I have mentioned before, Simon Tam stuck with us — even after he was personally squeezed by one of the pretty boys of the SCOTUS Elite, who pounded him with the message that without his name on the brief, his years of waiting and sacrifice would be wasted by the amateurs from the Garden State.
The Redskins, meanwhile, tried to do an end-run into the SCOTUS zone around us — and were prepared to pretty much stop at nothing to get there. Following which Pretty Boy told me, personally, on the phone that the Redskins’ move was, far from the Hail Mary that it looked like, really a “slam dunk” unless we put him or one of his fellow superstars on our brief and in the drivers’ seat. The Justices, he said, would not be able to resist the invitation to get rid of us and avoid addressing this incredibly complex question without guidance from a SCOTUS elite superstar.
He got a bucket of sand too. And, as they say in the appellate law business, his supposed prediction was error. But good try, guys. Hope you like the scent, vultures. We’re good.
And, with God’s help, ultimately, we were. Without them.
— Ali ???? (@ali) March 17, 2015
Not that it was an easy ride, unanimous decision notwithstanding. Oh, sure, now we know that. But the ankle-biters were in full bloom after the argument. One wag (I can’t find the quote now) reported on the oral argument along the lines of “the justices seemed to wish they could rule against both sides.” We heard all kinds of speculation, second-guessing. Eight justices — how about a tie? What then?
But when it came out our way, 8-0, and people asked me if I was surprised, I said I was not. Because while the justices asked both sides hard questions, they weren’t the same hard questions. They asked us probing, Socratic questions to test how far we thought our argument could go. Whereas — all you have to do is read the transcript to see this — the questions the justices asked the government were almost all different versions of, “Are you nuts?”
The Pretty Boys, the SCOTUS Superstars, knew this from go. That’s why they wanted a share of the cake we baked. After all, we gave it away free to Simon Tam — and, ultimately, the Redskins. Why not share a little of the glory with the people who need it the least?
Now fast forward a few months to Ken White’s post embedded above and our victory, on behalf of Patterico, in another pro bono case for free speech (which I anticipate will be appealed).
Unlike in the The Slants’ case, in which we never asked for help (except, ultimately, from UCLA’s First Amendment Law Clinic), help was needed to defend Patterico against the extremist “lawfare” that was being openly waged against him. Ken White and I had worked together on Naffe v. Frey in California and, ultimately, the Ninth Circuit. Ken, of course, is a California lawyer.
But for the Kimberlin lawsuit, we needed help in Maryland. I was quite confident we could get it, for all the reasons you’d expect — all the friends Popehat, Patterico and LIKELIHOOD OF CONFUSION® have among lawyers; my own professional network; and all the things. Here we were asking for help, and although it didn’t have the odor of easy pickings the way In re Tam did after the Federal Circuit opinion — much less after the Supreme Court granted cert — well, we had just done pretty well in the Naffe case, and this seemed like a similar chip shot.
We only needed a friendly, well-appointed law firm with federal court expertise in Maryland. We were ready to share a little First Amendment glory. Just help us bake the cake a little!
It wasn’t a chip shot. And until Bruce Godfrey stepped up, our attempt to get help was responded to pathetically.
You Can Help
Are you happy that our system allows people like Kimberlin to wage lawfare to suppress speech?
You shouldn’t be. You shouldn’t be even if you approve of Kimberlin’s progressive views (or, more accurately, the progressive views he mouths to fluff the gullible and the vapid) and can’t stand the conservative views of his targets. In fact, lawfare is more likely to be used by the rich and powerful and (in many cases) the conservative. You’re a fool if you applaud it because this time it targets people you don’t like.
You can help. But will you?
You can help if you’re a lawyer or law student by providing pro bono assistance to the defendants who can’t afford their own attorneys. Even if you can’t be a local counsel or an attorney of record — and it would be great if you could — you can be part of the team. (One of Kimberlin’s tactical errors is suing in federal court. It’s much easier for out-of-state attorneys to appear in Maryland’s federal courts than in its state courts.) . . .
Postscript: A Hope, And A Pointed Question
. . .
I have to ask a question. Conservative media is awash with power, influence, money, and contacts with giant and utterly merciless law firms. It’s not entirely clear to me why, when a domestic terrorist posing as a “progressive activist” is employing lawfare to silence conservative citizen journalists, it falls to an anti-War-on-Drugs, security-state-condemning, War-on-Terror-questioning, 2008-Obama-voting, Fox-News-ridiculing criminal defense attorney from Los Angeles to do so much of the legwork looking for pro bono help for the victims. Why is that?
I can guess a few reasons.
By the way, is there a pro sports team that would benefit from the First Amendment being saved from Brett Kimberlin — immediately, that is?
The “Popehat Signal” had gone up. But despite Popehat’s phenomenal reach, we got nothing from nobody to help with this case until Bruce Godfrey, a lawyer in a small law firm — not the ideal profile, in terms of resources or time available for volunteer work, but the ideal man — stepped up. (Ironically, Bruce is, like me, a Princeton alumnus. But he wasn’t on the email list.)
Big firms with offices in every city? Nothing. Friends of friends in Maryland? Nothing. First Amendment loudmouths from anywhere? Crickets.
Here’s how pathetic it got. At one point, I put an inquiry for help up on a Princeton alumni mailing list called Princeton-Lawyers. I got a couple of suggestions — hey, try this guy — which went nowhere. And one possible bite, from a list member at a well-respected larger firm in Baltimore. He promised to run it by his pro bono committee.
I never heard back from him.
I don’t mean he came back and told me, no, they’re not comfortable with this. No, it’s not what we do. No, we’re over our pro bono allocation for this year.
He just never got back to me. Of course I asked. Of course more than once.
Was he embarrassed? He should have been.
He should be.
Funny story: During the Naffe case, I was on an email chain with Ken and Eugene Volokh, discussing the case. Eugene, of course, has a great deal of interest in the First Amendment, and had even written about Section 2(a) quite some time ago. As a member of the UCLA First Amendment Clinic, Eugene worked with us on the our brief for The Slants, in fact, and his name is on it; we’re grateful for both of those things. It was a pleasure working with him, especially not least because he is a voracious law blogger.
Turns out that, during that email discussion involving Naffe v. Frey, I mentioned this cool trademark case I was working on involving an Asian band that was trying to get past Section 2(a) to Eugene, hoping to stoke his interest in it. He is very influential as a blogger and thinker on the constitution.
He didn’t get back to me.
Well, ultimately Bruce and I got the job done for Pat Frey, with a bit of occasional help from some other friends. Bruce did all the hard work whereas I, as is my wont, stood astride the commanding heights and wrote pretty words. No, it didn’t involve the half a million dollars, plus, in donated fees that it took to save your First Amendment for you via THE SLANTS, but was it six figures worth of pro bono time? Between Bruce and me, it certainly was.
Patterico’s Pontifications isn’t for everyone. Neither is THE SLANTS trademark.
But the First Amendment is. And once again, a handful of suckers, working for free and maybe a little bit of SEO love, have saved it.
Thanks to pretty much no one.
Would you like some cake?