Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, April 6, 2016

Snow on Free Speech and Disparaging Trademarks

Ned Snow, University of South Carolina, is publishing Free Speech & Disparaging Trademarks in volume 57 of the Boston College Law Review (2016). Here is the abstract.

Speech law has silenced trademark. A few months ago, the Federal Circuit ruled that the First Amendment requires Congress to grant trademark protection for disparaging speech. The ruling overturns decades of precedent that upholds the constitutionality of the anti-disparagement provision in the Federal Lanham Act. But the ruling does not end the debate. The issue is currently pending before the Fourth Circuit, and given its national scope, the issue is certain to be heard by the Supreme Court. This Article argues against the Federal Circuit decision. As illustrated by the five different opinions from the en banc panel, the complexities of speech law easily lead to disparate conclusions, any one of which may seem reasonable. Yet if there is one principle of speech law that is certain, it is this: context is dispositive. The context of trademark law is particularly nuanced, so a failure to account for that context easily produces inconsistencies in doctrine and policy. Tellingly, none of the Federal Circuit’s five opinions consider whether the Majority’s holding is consistent with the rest of trademark law. None of the judges recognized that trademark law imposes other content-based criteria as conditions for protection — and has done so for over a century. Simply put, the Majority merely applied speech law to the narrow provision under consideration, failing to account for the broader context of trademark law. This Article provides that context. This Article concludes that the constitutionality of the anti-disparagement provision cannot be doubted in view of the constitutionality of trademark law itself.

Download the article from SSRN at the link.

April 6, 2016 | Permalink

Adamson on Racist and Racialized Distortions in Media Coverage of Michael Brown and the Ferguson Demonstrations

Bryan L. Adamson, Seattle University School of Law, is publishing 'Thugs,' 'Crooks,' 'Rebellious Negroes' and 'Black Saviors': Racist and Racialized Distortions in Media Coverage of Michael Brown and the Ferguson Demonstrations in volume 32 of the Harvard Journal on Racial & Ethnic Justice. Here is the abstract.

Michael Brown’s death at the hands of Darren Wilson should have prompted a mass-mediated dialogue about institutional racism, implicit bias, and policing. Instead, mainstream media pursued a narrative in which Brown was the protagonist, Wilson was victim, and Black protesters were cast as reactionaries bent on social chaos. In the course of the Ferguson demonstration coverage, the worst narrative devices perpetuated jaundiced stereotypes about African-Americans, crime and criminality. To be sure, we have seen a similar pattern with the media in its account of events surrounding the deaths of Eric Garner, Tamir Rice, and Freddie Gray. The article explores how the media constructs news, and offers extensive history on the adverse narrative media tropes about Black men since colonial newspapers. Through qualitative and quantitative analysis of news narratives and images, this article demonstrates how Ferguson accounts emphasized Brown’s deviance and chaos and disorder. After offering comparative analysis of White criminality and protest news narratives, the article presses upon the social effects of racist and racialized media narratives. The article examines the controversy through First Amendment free speech, hate crimes, and true threat principles as well as FCC regulation of broadcasting, and media ownership. While explicating the First Amendment, regulatory and institutional barriers to curing the harms created, the article arrives upon promising institutional and extra-institutional reforms which can at least provide robust counter-narratives. This article examines the effects of the media’s insistent framing of African-Americans engaged in illegitimate, irrational, and even criminal expressions of dissent. In doing so, the author contends that in rationalizing and restructuring African-American deviance and dissent, the media reasserted a majoritarian ideology in which Whiteness — upon which our social, political, and economic institutions are constructed — maintained its status as the dominant order, and law enforcement responses to “disorder” were endowed with a presumptive correctness. In hewing to a pro-majoritarian orthodoxy, the media ignored the role institutional racism and implicit bias played in Brown’s death. Simultaneously, the media sublimated the more urgent socio-political grievances demonstrators sought to surface around law enforcement and the justice system. This article seeks to impress upon the reader the most injurious long-term impact of the news media approach to the Ferguson saga. As a basis of discourse, news is just one type of media content that enables a society to build consensus (if not agreement) over myriad social problems, and solutions to those problems. By constructing Brown as the blameworthy ‘victim’ from the outset, and through unrelenting focus upon Ferguson looting and criminality, the media subverted and derailed any real opportunity to have a meaningful discourses around race, law enforcement and justice system reform, or the myriad social, political, and economic issues Ferguson came to symbolize.

The full text is not available from SSRN.

April 6, 2016 | Permalink