Tuesday, December 22, 2015
In its more than 100 page opinion today in In Re Simon Shiao Tam, the en banc Federal Circuit held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, is unconstitutional because it violates the First Amendment.
The central issue was the denial of a trademark registration to "The Slants" by the applicant Simon Shiao Tam, on behalf of the Portland, Oregon "all Asian American dance rock band" (pictured below).
The United States Court of Appeals for the Federal Circuit, established in 1982 by a the merger of the United States Court of Customs and Patent Appeals and the appellate division of the United States Court of Claims, was reviewing the denial of the trademark by the Patent and Trademark Office (PTO). A panel of the Federal Circuit rejected Tam's First Amendment arguments, finding that it was bound by circuit precedent from 1981 that held that the First Amendment was not implicated by the denial of trademark registration.
The Circuit sua sponte ordered rehearing en banc. The majority opinion, authored by Judge Kimberly Moore (who was formerly a law prof at George Mason School of Law), was joined by 8 other judges, including Chief Judge Sharon Prost, reasoned that much had changed since the 1981 circuit precedent - - - including the jurisprudence offering protections for commercial speech under the First Amendment - - - and that the First Amendment should apply.
Not only should the First Amendment apply, it is violated in the most egregious manner: viewpoint discrimination. Moore's opinion for the majority stresses that the "disparagement" provision "discriminates against speech because it disapproves of the message conveyed by the speech" and is therefore subject to strict scrutiny. That the government might itself not disapprove but "claims that some part of the populace will disapprove of the message" is irrelevant. When the PTO refuses to register a trademark under this provision,"it does so because it believes the mark conveys an expressive message—a message that is disparaging to certain groups." Mr. Tam was undoubtedly engaging in expressive speech:
Mr. Tam explicitly selected his mark to create a dialogue on controversial political and social issues. With his band name, Mr. Tam makes a statement about racial and ethnic identity. He seeks to shift the meaning of, and thereby reclaim, an emotionally charged word. He advocates for social change and challenges perceptions of people of Asian descent. His band name pushes people. It offends. Despite this—indeed, because of it—Mr. Tam’s band name is expressive speech.
The court rejected the government's three arguments, including its argument that the First Amendment did not apply since no speech was prohibited. The government's second argument - - - that trademark registration is government speech - - - was likewise rejected. Here, the court distinguished last Term's decision in Walker v. Texas Sons of Confederate Veterans, the confederate flag license plate case, by distinguishing between the license plate (which the government continues to own and which the car driver must affix) and the trademark symbol (which the government does not "own" and the registrant can use or not). As for public perception, the court used a copyright analogy: just as the public does not associate copyrighted works such as Fifty Shades of Grey with the government, "neither does the public associate individual trademarks such as THE SLANTS with the government."
The court likewise rejected the government argument that § 2(a) merely withholds a government subsidy for Mr. Tam’s speech and is valid as a permissible definition of a government subsidy program: "Trademark registration does not implicate Congress’s power to spend or to control use of government property." Further, the "benefits of trademark registration, while valuable, are not monetary, and are "unlike a subsidy consisting of, for example, HIV/AIDS funding," as in the Court's 2013 decision in USAID v. Alliance for an Open Society.
The majority's opinion clearly rests on its conclusion that the disparagement provision of § 2(a) is viewpoint discrimination that cannot survive strict scrutiny. But it also provides the fall-back rationale of commercial speech.
Even if we were to treat § 2(a) as a regulation of commercial speech, it would fail to survive. In Central Hudson, the Supreme Court laid out the intermediate- scrutiny framework for determining the constitutionality of restrictions on commercial speech. First, commercial speech “must concern lawful activity and not be misleading.” If this is the case, we ask whether “the asserted governmental interest is substantial,” id., and whether the regulation “directly and materially advanc[es]” the government’s asserted interest and is narrowly tailored to achieve that objective.
[citations omitted]. But the court's rationale circles back. The court finds that 2(a) fails at the second step: the government interest cannot be substantial because it is based on viewpoint discrimination. This is certainly predictable in light of IMS v. Sorrell (2011). The court finds that the government's asserted interest in "fostering racial tolerance" cannot support a speech regulation. "The case law does not recognize a substantial interest in discriminatorily regulating private speech to try to reduce racial intolerance." The cases relied upon are outside the commercial speech realm.
This tension between commercial speech and non-commercial speech permeates some of the opinions by Judges who did not join the majority. Perhaps most persuasive is the dissenting opinion by Judge Jimmie Reyna, arguing that §2(a) survived commercial speech's intermediate scrutiny:
The marketplace of ideas differs dramatically from the marketplace of goods and services. While the marketplace of ideas may tolerate or even benefit from the volatility that accompanies disparaging and insulting speech, the marketplace of goods and services is a wholly different animal. Commerce does not benefit from political volatility, nor from insults, discrimination, or bigotry. Commerce is a communal institution regulated for the mutual economic benefit of all. Commercial speech that discredits or brings reproach upon groups of Americans, particularly based on their race, has a discriminatory impact that undermines commercial activity and the stability of the marketplace in much the same manner as discriminatory conduct.
As the court notes numerous times throughout its opinions, the disparagement provision has long been contentious, including the notorious "Dykes on Bikes" trademark dispute (which I wrote about here).
But currently - - - and looming largely - - - the ongoing litigation currently before the Fourth Circuit regarding the PTO's cancellation of the trademark of a football team with the name many believe disparages Native Americans.
Moreover, given that a circuit court has declared a portion of a federal statute unconstitutional, this issue could well be going to the United States Supreme Court.
UPDATE: September 29, 2016, The United States Supreme Court has granted certiorari.
Friday, December 18, 2015
Judge Royce Lamberth (D.D.C.) ruled yesterday that the district court lacked jurisdiction over a Guantanamo detainee's habeas claim seeking his periodic review, as ordered by President Obama.
The ruling in Salahi v. Obama leaves Guantanamo detainees without a way to enforce the Periodic Review Board process set by executive order by President Obama.
Recall that President created an interagency process in 2011 to periodically review whether continued detention of certain Guantanamo detainees was "necessary to protect against significant threat to the security of the United States." Under EO 13567, every detainee was to get a full hearing every three years from a PRB, plus interim review under certain circumstances.
Salahi has been detained at Guantanamo since 2002, without charges, and has yet to have a PRB hearing (or even have one scheduled). He filed a habeas claim in the D.C. District seeking, among other things, a scheduled PRB hearing.
The court rejected his claim. The court said that "probabilistic" claims--that is, claims that only might lead to release--don't fall within habeas, and that in any event the EO didn't create any substantive rights that a Guantanamo detainee might actually enforce in court.
The upshot is that while the President may order periodic review, that doesn't mean that detainees can actually get it.
Wednesday, December 16, 2015
The full Second Circuit last week denied en banc review of its June ruling in Turkmen v. Ashcroft. That ruling allowed a civil rights case against former AG Ashcroft and former FBI Director Mueller, among others, by alien detainees held at the Metropolitan Detention Center in New York to go forward. (The June ruling was not a ruling on the merits, however.) The full Second Circuit denied review by a 6-6 vote. (H/t: Joe Dicola.)
The June ruling and the full court's denial of review are victories for the plaintiffs and, more generally, for access to justice. They deal a major blow to the government in defending detainee-abuse suits that arise in domestic, non-military detention facilities. But while the rulings are significant (to say the least), they may be short-lived. That's because the government is sure to appeal to the Supreme Court, and because the Court will almost surely take it.
Tuesday, December 15, 2015
The Supreme Court yesterday upheld a mandatory arbitration clause in a consumer contract-of-adhesion, forcing the consumer-plaintiffs into arbitration (and out of the courts) to sue DIRECTTV over early termination fees. The ruling is yet another blow to consumers who seek to recover relatively small damages from corporations--the kinds of claims that are best suited for class action lawsuits (in courts). But yesterday's ruling all but bolts the door to the courts for these kinds of claims, as corporations increasingly include mandatory arbitration clauses in their standard-form consumer contracts.
At the same time, the opinion includes powerful federal supremacy language, and reminds us of the constitutional requirement that state court judges uphold federal law, explicitly mentioning federal civil rights. The ruling thus illustrates that the politics in preemption cases can be complicated, and that a federal-friendly ruling in one area (mandatory arbitration clauses) can have important implications in others (civil rights enforcement).
Of course, Congress can "reverse" the holding simply by changing the FAA, although that seems highly unlikely.
The case, DIRECTTV v. Imburgia, grew out of consumers' disputes with DIRECTTV over early termination fees. The plaintiffs' contracts with DIRECTTV (a standard-form contract of adhesion) included a mandatory arbitration clause and a class-arbitration waiver. In particular, the contracts said that "any Claim either of us asserts will be resolved only by binding arbitration," and that "[n]either you nor we shall be entitled to join or consolidate claims in arbitration." The contract also said that if the "law of your state" makes the waiver of class arbitration unenforceable, then the entire arbitration clause is unenforceable.
But at the time the parties contracted, California law said that a waiver of class arbitration in a consumer contract of adhesion was unconscionable and thus unenforceable. This rule came from the California Supreme Court's decision in Discover Bank v. Superior Court. This was the "law of your state," at least insofar as the parties understood it at the time of the contract, and would have rendered the entire arbitration clause unenforceable, allowing the plaintiffs' case to proceed in court (and not requiring arbitration).
An earlier Supreme Court case and the Federal Arbitration Act threw a wrench into that analysis. The Federal Arbitration Act says that a "written provision" in a contract providing for "settle[ment] by arbitration" of "a controversy . . . arising out of" that "contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." The Supreme Court ruled in AT&T Mobility v. Concepcion (2011) (after the parties contracted) that the FAA preempted California's Discover Bank rule, because that rule stood as an obstacle "to the accomplishment and execution of the full purposes and objectives of Congress."
So the plaintiffs' ability to sue in state court turned on whether the contract's reference to "law of your state" meant the Discover Bank rule absent preemption, or the Discover Bank ruled as preempted under Concepcion. If the former, then the contract provision would have made the entire arbitration clause unenforceable, and the plaintiffs could have pursued their claims in court. If the latter, then the contract provision would have left the arbitration clause in place, and forced the courts to dismiss the plaintiffs' claim (and go to arbitration instead).
The Court ruled that the latter interpretation was the better one. In other words, the Court said that "law of your state" meant valid California law--that is, the Discover Bank rule as preempted by the FAA under Concepcion--which did not render the class-arbitration waiver unenforceable. As a result, the arbitration clause in the contract stayed in place, and the plaintiffs' court case will be dismissed. (Justice Breyer wrote the opinion, joined by the Court's conservatives (minus Justice Thomas) and Justice Kagan. Justices Breyer wrote the dissent, and Justice Kagan joined him, in Concepcion.)
Justice Ginsburg dissented, joined by Justice Sotomayor. She wrote that "law of your state" should be interpreted to mean the Discover Bank rule, as the parties intended and expected at the time of the contract (because the Court had not then issued Concepcion). Justice Thomas dissented separately, arguing that the FAA has no application to state court proceedings.
The ruling adds yet more authority to FAA preemption of consumer mandatory arbitration clauses and thus deals a blow to consumer-plaintiffs who seek to sue corporations in court. (Arbitration often favors the corporation.) It tilts the scales (again) toward the corporation, and away from the consumer.
But at the same time, the ruling is strong on federal supremacy, including federal civil rights. Justice Breyer included powerful language reinforcing the supremacy of federal law and the constitutional requirement of state court judges to enforce federal law, explicitly mentioning federal civil rights law.
In his Presidential proclamation this year, President Obama articulates a living constitutionalism perspective:
Today, we stand on the shoulders of those who dedicated their lives to upholding the meaning of our founding documents throughout changing times -- a mission made possible by the fundamental liberties secured in the Bill of Rights. As we reflect on the strides we have made to lift up an engaged citizenry, we pay tribute to the extraordinary foresight of our Founders who granted the protections that enable us to bring about the change we seek. Let us recommit to continuing our legacy as a Nation that rejects complacency, empowers its citizens to recognize and redress its imperfections, and embraces the struggle of improving our democracy so that all our people are able to make of their lives what they will.
For more on the "holiday," my piece from last year is reprinted here.
Monday, December 14, 2015
The United States Supreme Court today issued a simple Order staying the mandate of the Alabama Supreme Court's controversial denial of full faith and credit to a Georgia adoption of three children by a member of a same-sex couple in V.L. v. E.L. Recall that the Supreme Court of Alabama's opinion, reversing the lower courts, relied primarily on a dissent from the Georgia Supreme Court in another case.
Today's Order reads in full:
The applications for recall and stay of the Supreme Court of Alabama’s Certificate of Judgment, in case No. 1140595, presented to Justice Thomas and by him referred to the Court, are granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court.
It is clearly not a ruling on the merits. Whether or not it provides an indication that the Court will grant the petition for writ of certiorari is speculative.
Nevertheless, this controversy is reminiscent of previous controversies involving the Alabama Supreme Court - - - whose Chief Justice is Roy Moore (pictured above) - - - and the state courts' interpretation of same-sex marriage as opposed to the United States Supreme Court.
Thursday, December 10, 2015
The Seventh Circuit this week denied a preliminary injunction to owners of a would-be nude-dancing establishment in Angola, Indiana, because the owners stipulated to the city's secondary-effects justification for its zoning ordinance that blocked development of the establishment.
The plaintiffs' surprising concession means that the plaintiffs could not show a "substantial likelihood of success" on the merits of their First Amendment claim, and that they therefore could not get an injunction ordering the city to grant a license to develop the business.
The case arose when the plaintiffs proceeded with developing a site for an adult entertainment business, the only one in Angola, Indiana. The city reacted by changing its zoning law in a way that would bar the plaintiffs from completing the project and starting the business. In particular, the city adopted a zoning rule that required sexually oriented businesses to be located at least 750 feet from every residence--a standard that the plaintiffs could not meet. The city justified the new rule based on the "secondary effects" of adult entertainment businesses, including crime, prostitution, disease, public indecency, and the like.
The city and plaintiffs filed motions for partial summary judgment, and the plaintiffs filed for a preliminary injunction. Oddly, the plaintiffs stipulated to the city's secondary-effects justification at the hearing (even as they said they'd challenge it later):
We'll stipulate that in our preliminary injunction motion we are not challenging here the factual predicate for the ordinances. We do want to challenge that. That was part of the amended complaint that was struck. We've asked for discovery on that. We haven't been able to take discovery. So we want to challenge that, at some point, but we will stipulate so that [Angola's counsel] is not concerned that we would go up to the Court of Appeals and make the argument that they . . . didn't have a requisite basis at least for this point to enact these ordinances. They're relying on that. That's fine. We're not challenging that here.
The district court denied the plaintiffs' motion, and the Seventh Circuit affirmed, because the stipulation meant that the plaintiffs couldn't show a likelihood of success on the merits. (Under Renton the city can zone adult entertainment establishments based on their secondary effects.)
Still, this ruling doesn't end the case. The district has yet to decide whether the city left open an alternative avenues for the communication. (If not, the plaintiffs could still win on the merits.) So the case will go back to the district court on this question. In the meantime, the Seventh Circuit's ruling means that there won't be adult entertainment in Angola, unless and until the plaintiffs win on the merits.
Wednesday, December 9, 2015
Today the Court heard oral arguments in Fisher v. University of Texas - - - Fisher II - - - (again) raising the constitutionality of the admissions plan at the University of Texas that includes a consideration of race. How much a consideration of race is included in the plan as well as the effect of any considerations surfaced in today's argument which demonstrated the deep divide amongst the Justices on issues of race.
This deep divide was apparent, despite the fact that Fisher I was a 7-1 opinion as Justice Breyer noted today. (Only Justice Ginsburg dissented in Fisher I; Justice Kagan was recused). Breyer stated that the Court "promised in Fisher I" that strict scrutiny would not be "fatal in fact" as applied in university affirmative action. Justice Breyer had previously stressed in a colloquy with Bert Rein, representing Fisher, that it must be possible to use race, actually "spelling it out" to counsel. After Breyer asked for an example of using race and Rein replied "you could give more emphasis to socio-economic factors," Breyer stated:
That's not to use race. I'm saying r-a-c-e, race. I want to know which are the things they could do that, in your view, would be okay. Because I'm really trying to find out. Not fatal in fact, we've said. Okay? Not fatal in fact. Fine.
Yet the problem of the requirement of narrowly tailored proved difficult. Perhaps Solicitor General Verrilli, supporting the University of Texas, expressed the problem best by calling it a "Catch-22." Indeed, it seemed that the university's plan was problematic both because it was and was not effective. Nevertheless, one recurring argument was whether the University of Texas plan was as good as - - - if not better - - - than the plans upheld in Grutter and Bakke.
The arguments were not limited to the means chosen, however, for the continued validity of diversity as a compelling interest in higher education surfaced repeatedly. While General Verrilli did not mention George Washington, he did aver to the continued importance of diversity in higher education and for the nation. Moreover, there were references to the hope expressed by the Court in Grutter v. University of Michigan that affirmative action would not be necessary in 25 years. Chief Justice Roberts asked counsel for University of Texas, Gregory Garre, whether we were going to "hit the deadline" in 12 more years. Justice Scalia asked Solicitor General Verrilli if he thought we could "stop disadvantaging some applicants because of their race" in another 13 years.
Scalia made it clear that he thought the time for any type of racial affirmative action was long past, if there ever was such a time. Indeed, in what was probably the most controversial commentary in the argument, Scalia advanced what might be called a separate-but-unequal argument:
There are there are those who contend that it does not benefit African-Americans to to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less a slower track school where they do well. One of one of the briefs pointed out that that most of the most of the black scientists in this country don't come from schools like the University of Texas.
. . . . They come from lesser schools where they do not feel that they're that they're being pushed ahead in in classes that are too too fast for them.
Will it all devolve to Justice Kennedy?
Recall that the Fifth Circuit in Fisher on remand from the United States Supreme Court did not remand to the district court, but decided the case. But just what that evidence might possibly be adduced at a trial was also a controversial subject at the oral argument.
Still, this might be the only compromise available for such a divided Court.
Tuesday, December 8, 2015
The Amicus Brief of the United States in Fisher v. University of Texas - - - Fisher II - - - to be argued December 9, begins its argument with an interesting evocation of the governmental interest in diversity:
Over two hundred years ago, George Washington recognized the importance to the Nation of a university education that would “qualify our citizens for the exigencies of public, as well as private life *** by assembling the youth from the different parts of this rising republic, contributing from their intercourse, and interchange of information, to the removal of prejudices which might perhaps, sometimes arise, from local circumstances.” Letter from President George Washington to the Commissioners of the District of Columbia (Jan. 28, 1795), in 34 The Writings of George Washington 106-107 (John C. Fitzpatrick ed., 1940).
[Ellipses in original].
Monday, December 7, 2015
The Supreme Court today declined to hear an appeal upholding an assault-weapon ban against a Second Amendment challenge. The action, a denial of cert., means that Highland Park's ban on assault weapons stays on the books, even though the decision says nothing on the merits.
The case, Friedman v. City of Highland Park, involved a Second Amendment challenge to Highland Park's ban on semi-automatic firearms. The Seventh Circuit upheld the ban. That court, frustrated with the lack of guidance on the question, devised and applied this test:
[W]hether a regulation bans weapons that were common at the time of ratification or those that have "some reasonable relationship to the preservation or efficiency of a well regulated militia," and whether law-abiding citizens retain adequate means of self-defense.
The Seventh Circuit said that the ban didn't run afoul of this test, because assault weapons weren't common at the time of ratification; they had no reasonable relationship to the preservation or efficiency of a well regulated militia; and law-abiding citizens had other options for self-defense (handguns and long-guns). The court went on to say that regulation of assault weapons really ought to go "through the political process and scholarly debate" and not by judges "parsing ambiguous passages in the Supreme Court's opinions."
While the Supreme Court didn't see fit to intervene and reconsider this ruling, the Seventh Circuit's approach didn't sit well at all with Justices Thomas and Scalia. They dissented from the denial of cert., arguing that the Seventh Circuit's test "eviscerate[d] many of the protections recognized in Heller and McDonald." Justice Thomas dissected the Seventh Circuit's test and wrote that each part of it--commonality at the time of ratification, preservation of a militia, and self-defense alternatives--undermined Heller and McDonald. The upshot: "I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right."
Again, the Court's denial of cert. says nothing on the merits. But it leaves Highland Park's regulation and the Seventh Circuit's opinion both on the books. With just two justices dissenting, it looks like either (1) the Court's not yet ready to revisit the Second Amendment, or (2) it's content with the Seventh Circuit's approach.
Friday, December 4, 2015
Two studies this week detail something that we probably already knew, or could guess: State court judicial elections impact the protection of unpopular fundamental rights.
One study, How Judicial Elections Impact Criminal Cases, by Kate Berry at the Brennan Center, concludes that criminal defendants get a raw deal by state court judges the closer it comes to election time. In particular:
- The more frequently television ads air during an election, the less likely state supreme court justices are, on average, to rule in favor of criminal defendants.
- Trial judges in Pennsylvania and Washington sentence defendants convicted of serious felonies to longer sentences the closer they are to re-election.
- In states that retain judges through elections, the more supportive the public is of capital punishment, the more likely appellate judges are to affirm death sentences.
- In the 37 states that heard capital cases over the past 15 years, appointed judges reversed death sentences 26 percent of the time, judges facing retention elections reversed 15 percent of the time, and judges faces competitive elections reversed 11 percent of the time.
- Trial judges in Alabama override jury verdicts sentencing criminal defendants to life and instead impose death sentences more often in election years.
The other study, A Handful of Elected State Judges Continue to Deny Marriage Equality, by Billy Corriher at the Center for American Progress, links judges subject to judicial election or retention to their willingness to recognize marriage equality after Obergefell. According to the study,
The counties where judges or magistrates still refuse to recognize marriage equality are in states that have seen increasingly politicized judicial elections and a flood of campaign cash into those races.
Corriher's conclusion: "Politicized elections require judges to cater to public opinion, instead of protecting individual rights in the face of public pressure."
Tuesday, December 1, 2015
The right-to-a-remedy is a standard in our constitutional songbook, going back to Marbury v. Madison, even before. But what about rights against a remedy? While we might not think about such things often, they're there. And the Court in Shelby County elevated one of them to a higher level, with potentially devastating consequences to our system of constitutional remedies against the states.
Davis argues that the Court's newfangled "equal sovereignty" principle that contributed in Shelby County to the demise of Section 4 of the VRA (the coverage formula for preclearance) is a right against a remedy--but one of a different sort altogether. Davis says that "equal sovereignty" stands apart from other rights-against-remedies, because the Court neglected to consider any countervailing interests or factors, or whether there are other ways to respect "equal sovereignty"--in short, that the Court used "equal sovereignty" as a trump card on the right to a remedy (in Section 5 preclearance). Davis explains:
Rights against remedies are usually shaped by considered judgments about the whole remedial scheme. Due process, for instance, limited remedies that might "intimidate" regulated parties from seeking judicial review. [See Ex Parte Young.] . . . Equal sovereignty imposes a different kind of right, it appears. The Shelby County majority simply did not address Justice Ginsburg's argument that a bailout process adequately protected a state's equal sovereignty.
Thus, the Court treated Shelby County more like a third party claiming an equal protection right against reverse discrimination than as a recidivist jurisdiction with a history of voting wrongs. . . .
At a minimum, this newfound equal sovereignty right against remedies is unusual and troubling. Equal sovereignty requires the Court to strike down a constitutional remedy without considering whether that remedy is necessary to redress constitutional violations.
The result: "equal sovereignty" as a right-against-remedies "has the potential to undercut the system of constitutional remedies against states.