The free-speech crackup
In case you thought we’d made any progress on free speech — and especially free speech and trademarks — by virtue of relatively recent cultural signals, the news is not good. In fact, it’s awful and getting worse, except for the Supreme Court part. Maybe.
Let’s start here with what looks like a trademark thing:
Great piece in today’s @BostonGlobe by @BerkeleyLaw’s Sonia Katyal on the rush to register vulgar or disparaging trademarks in the wake of the Tam decision. Tx 4 the shoutout to my @HarvLRev article w @BartonBeebe on running out of trademarks https://t.co/izaKXsuh3c
— Jeanne Fromer (@JeanneFromer) June 24, 2018
Whoa, whoa. I appreciate logrolling very well, but the endorsement of the referenced article — now behind a paywall — by my friend Jeanne Fromer is very hard to understand. It repeats a theme raised by opponents of Simon Tam’s challenge to Section 2(a)’s disparagement clause when his case against the USPTO came up to the Supreme Court in 2017/2018: “Registering vulgar trademarks will give bad people monopolies on vulgar terms, and thus, power over other’s expression. That means less free speech, not more.”
No. That is not how trademarks work. As I noted in my response to Jean’s tweet here, “The article unfortunately repeats uncritically a serious misunderstanding: That you can prevent use of a term or symbol by ‘trademarking’ it. You can’t.” Or as other friend Ed Timberlake, no fan of Matal v. Tam, explains:
— Trademarks Are Magic (@TimberlakeLaw) June 25, 2018
Thank you, Ed.
It’s all of a piece. And while law professors and legal journalists — much less lawyers and judges — really should understand what trademarks are and aren’t if they’re going to write about them, it’s a lot more chilling to realize the fight here isn’t a trademark fight. It’s a First Amendment fight:
Liptak Down: The Last Lawman At the NY Times Falls https://t.co/Ct23lBNuU3
— Scott Greenfield (@ScottGreenfield) July 1, 2018
Actually, as Scott Greenfield makes clear in that post, it’s not a First Amendment fight at all, “even.” It’s a power fight: If the First Amendment doesn’t result in outcomes we like, it’s a bad amendment. It’s “weaponized”:
When constitutional rights are reduced to “weapons” because they get in the way, it says nothing of the right and everything about the desired outcome. Sometimes it serves one tribe. Sometimes it serves the other. And when it serves the other, it’s “weaponized”? . . .
Free speech was glorious when it served to further the agenda of one tribe, but when they pushed beyond its limits to accomplish by lawfare what it failed to achieve through the legislative process, it turned dark, ugly and . . . conservative?
Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.
Take pornography and street protests. Liberals were once largely united in fighting to protect sexually explicit materials from government censorship. Now many on the left see pornography as an assault on women’s rights.
The First Amendment didn’t change. All the same words are there, as before. Free speech didn’t change. All the same arguments and rationales remain. What changed is the rhetoric of the left, from civil liberties to “harms it can inflict.”
A sad day. How did we get past this mentality — the “weaponized” language comes from Justice Kagan’s dissent in the recent Janus decision — to get the result in Matal v. Tam (in which all the justices, including Kagan, joined), when the progressive professoriate was already nipping at the heels of free speech? “Vile trademarks will be registered!” they wailed. And they were right… kind of.
I told you that case was about more than trademarks, and certainly more than the Redskins’ trademarks. So did Rich Lowry. So did Martha Engel. Everyone knew it — including those who did not support the outcome.
I don’t quite know how The Slants managed to set a high-water mark for free speech before “weaponization” set in. But thank God, and everyone else I’ve thanked already, we did. It could be a long time until we get back there again.