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Monday, June 19, 2017

Unanimous Supreme Court Delivers Direct Blow to "No Platform" Extremists on College Campuses

In today's opinion in Matal v Tam, the Supreme Court unanimously (with only Justice Gorsuch abstaining, as the case was briefed and argued during the Obama administration), invalidates the "anti-disparagement" clause of the Lanham Act on First Amendment grounds. Although the 8 justices split, 4-4, on one aspect of the reasoning, all 8 of them agree that the First amendment bars the federal government from conditioning registration of a trademark on a criterion that the mark not be offensive to a person or a group.  Given the current environment on college campuses and in similar once-lively fora for debate, this opinion is a welcome re-affirmation of the fundamental civil liberty of free speech in the face of so-called "political correctness" which has given primacy in debate to the offense-taking of countless self-proclaimed marginalized groups.  No longer can extremists stifle ideological opposition or scientific inquiry at a government-run educational institution by claiming it is hurtful or bully the institution into withholding a "platform" from a speaker they consider offensive, the so called "no platform" demand (you can read here an absurdly pro-extremist explanation of what "no-platforming" means: http://rationalwiki.org/wiki/No_platform.

The Lanham Act has, since its inception,, prohibited registration of trademarks that "may disparage persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt or disrepute"  The language obviously begs for a "facial" First Amendment challenge, at least since the flag-burning cases.

A rock band named The Slants applied to register their band's name as a trademark, Consistent with the Act (the Court so finds, or holds), the examiner at the Patent and Trademark Office, having received various complaints, found that "there is ... a substantial composite of persons who find the term in the application for mark offensive" (emphasis added).  Justice Alito's opinion excerpts several further uses of the word "offensive" in the rejection of the application.

The government -- recall again that this was briefed and argued under the we're-so-woke-and-sensitive Obama administration --  advanced three arguments to defend the clause: that issuance of a trademark amounts to "government speech";  that  trademarks are a form of "government subsidy" and last that a "government program" should be judged by different standards than other infringements on civil liberties.

All Justices agree that the registration of a trademark is not "government speech".  Humorously, Justice Alito quotes numerous trademarks and asks rhetorically if each one of them is the government speaking, and then, if tartly observes, if they really are the government speaking, it is just babbling. He further notes, if registration of a mark is government speech, then is registration of a copyright government speech?  Given the universe of things that are said in books and plays and songs, the absurdity of the government's position becomes evident.

The Court next considers whether registration of a trademark is a government subsidy.  Previously, the Court had allowed the government to withhold funds from activities it does not want to promote, even where the Court had acknowledged the applicant for the funds had a constitutional right to conduct the activity -- for example, abortion funding.  The government's argument was overly broad, defining any economic benefit from the registration as a "subsidy".

Here, the justices split on their reasoning  -- and in curious ways.  Justice Kennedy, writing for himself and the three female (and most progressive Justices) disposes of all the government's remaining argument with a strongly worded opinion that the disparagement clause is a form of "viewpoint discrimination" that requires heightened scrutiny and fails plainly that test.  He closes with a heartening paragraph:  "A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.  The First Amendment does not entrust that power to the government's benevolence.  Instead our reliance must be on the substantial safeguards of free and open discussion in a democratic society."

Frame that, college presidents! (Seriously-- it helpfully appears on its own page)

Justices Alito, Breyer, and Thomas and Chief Justice Roberts agree with their colleagues.  "the disparagement clause discriminates on the basis of viewpoint.... Giving offense is a viewpoint."

But, they also opine, that, quite simply, a trademark registration isn't a subsidy.  To the extent money changes hands, it is the applicant paying the government.  An economic benefit from a government registration is not a subsidy - look how many programs there are where governments hand out licenses, which are just a form of registration.  Someone can easily derive a benefit from having a license - for example to operate a business or to drive a commercial vehicle. That would not enable the government to control what that person could say in public.

Then they consider the "this is a special government program" argument and also find it lacking in precedent.  The only precedents mentioned involve the government as employer and the touchy issue of forced collection of union dues among its employees.  The opinion here is a little terse, but the basic message is, that context bears no resemblance to this one and even if it did, this one involves viewpoint discrimination, so, no.

Justice Alito's coalition goes on to consider whether the "disparagement clause" could stand muster as a light regulation of "commercial speech" and conclude it does not. Here, these Justices -- note the inclusion of Justice Breyer -- take on directly the "politically correct" justification for speech restriction:

"no matter how the point is phrased, its unmistakable thrust is this: the government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race ethnicity, gender, religion, age, disability, or any other similar ground is hateful, but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ' the thought that we hate' [quoting Holmes]"

More analytically, these Justices conclude that the "disparagement clause" is not "narrowly tailored" as even restrictions on commercial speech must be, because -- to the extent it is not enforced discriminatorily, -- it bars what I call "anti-bad guy" speech, such as "down with racists" and so forth.  Justice Alito says, so read, the law under examination is not even an anti-disparagement clause but a "happy talk" clause.  In addition, the line between commercial and non-commercial speech is "not always clear" and they are unwilling to risk that free speech be abridged merely by "affixing the commercial label" to "any speech that may lead to political or social 'volatility'."   Stuff that, no-platformers.

A good day for liberal values as the primacy of free and open exchange of ideas over political correctness and the claim of offense is reaffirmed by all 8 Supreme Court justices, and there is no reason to believe Justice Gorsuch would see it any other way.

Tuesday, January 31, 2017

Sally Yates Should be Disbarred

I/m no fan of President Trump or his immigration policy, bit I don't know if there has ever been as massive and blatant a departure from professional responsibility as Sally Yates' instruction to all DOJ lawyers this week not to defend their client in pending lawsuits because, while conceding that the client had taken an action that was "lawful on its face", she did not believe the "policy choice embodied in [the relevant] executive order is wise or just. "

Apparently Sally Yates not only considers herself superior to the duly elected President of the United States in determining what the right policy choice is, like "Super-President Sally Yates," but she also apparently considers herself superior to all of the thousands of attorneys in the DOJ regarding the scope of professional responsibility to their client.  And you thought Donald J Trump was the biggest narcissist in town.

Yates' letter to the attorneys tries to draw an "on its face /  as applied" distinction.  That's ridiculous. The order had been applied for less than 48  hours, and had already been tweaked to clarify its non-applicability to green card holders.  Any lawyer with more than a week of courtroom experience would know how to defend the order in general while indicating the possibility that the policy might wind up being further modified based on observations about what transpired when it was put into effect. Concerns about one day's worth of application does not justify letting a default judgment be entered on the policy in general. She also  claims that attorneys at the DOJ have a collective responsibility to do justice.  That's equally ridiculously overbroad. Such a responsibility to do justice is congruent with the parameters of the lawyer's professional responsibility, it doesn't mean the lawyer can breach his or her professional responsibility to the client. There is a world of difference between electing not to prosecute an individual for a low-level crime, or choosing not to go along with a questionable entrapment, and letting a default judgement be entered that binds the United States of America globally and indefinitely.  The DOJ is not a free-floating fourth branch of government whose policy preferences supersede the elected branches'.

Here we have a lawyer-client relationship; a fast-moving lawsuit against the client; and the legal position of the client is, by her own admission, defensible, and she orders all lawyers under her supervision to intentionally and knowingly default in their representation of the client.  That has to be unprecedented.  Although I can imagine that, in the hundreds of years of lawyer-client relationships in the Anglo-American legal system, on occasion a lawyer has experienced some personal conflict with carrying out his or her representation of a client, the only ethical action in that context would be to seek to resign the representation, which would be conditioned upon someone else being able to take over the representation without harm to the client's interests.  This is hornbook law as instructed in classes of professional responsibility and, even in matters of public policy, there are precedents for it. For example, after President Carter's failed invasion of Iran in 1980.  Cyrus Vance resigned as his Secretary of Sate (after, not before).  He acted on his conscience but only at a time that did not derogate from the interests of the United States of America.

But here, she goes light-years beyond resolving her own conflict with the position of the client and, incredibly, instructs every lawyer working under her supervision to stop representing the client as well.  This is a lawyer's version of a coup d'etat.  I can't even imagine what the lawyers handling those cases must have thought when they received her instructions.

"Hey, boss says stop working on the 7 nation immigration ban litigation."
"What? Has it been withdrawn or was there a settlement of some kind?"
"Nope"
"Has someone found a Supreme Court case that clearly says the order is unConstitutional?"
"Nope."
"Then, what for?"
"Boss says she doesn't feel like it's a good policy."
"And I'm supposed to go in there and tell the judge to just default the United States of America because that's just how my boss feels?"
"I guess."
"'Cause, you know, I've got cases, I've got precedents, I can make an argument here."
"Toss 'em. Boss says we're to stand down, not defend the client in this case."
"And that's not malpractice?"
"Hope not."
"Will I be protected from disbarment because I was following my boss' instructions?"
"Doubt it."

Honestly, I think, were I in such a position, I would have had no choice but to disregard her instruction, figuring she was deranged or something like that. The lawyer's duty is to the client. If your superior is blatantly telling me to commit malpractice, I don't think there is, either in the short-term or long-term, any alternative but to continue to do my job ethically and hope that somehow the deranged superior winds up removed from her position. If she instructed me to withhold material evidence, it wouldn't protect me were I to do so, I don't see how this is any different.

And what about the several judges around the nation who expect to walk into court and receive a robust presentation of the cases and authorities so they can render the best-informed decision? Obviously they would have to appoint someone from the private sector, a la what happened in the DOMA litigation, to represent the position of the United States of America appropriately, and until that appointment occurred and the person selected was able to prepare a case, the judges would have to place the cases on hold, which hardly does the interests of any person affected by them any good at all.

Imagine if you were a criminal defendant and you had a public defender assigned to you.  The weekend before your trial is about to start, your attorney meets you and says, "I just wanted to let you know that I'm not going to make any argument on your behalf next week, not going to put on any witnesses, cross-examine anybody, or offer any other proof."
"Why?"
"I just think you're a bad guy. and you deserve to go to jail."
"Well if that's the way you feel, I want a new lawyer."
"Nope, I 'm going to be your lawyer, I'm just not going to do anything."

I know lately it feels like we've entered a bizarro universe, but I would hope that the professionals among us would not lower standards in response. If she felt as she says she did, she should have resigned in protest.  But, for instructing other attorneys to breach their professional responsibility to the client, she deserves to be disbarred.