Tag Archives: 1st Amendment

Protecting the right to Pokemon Go

My column for the Washington County Daily News is online. Here you go:

The summer of 2016 will be remembered for many things. It was the summer when America came to grips with the fact that Donald Trump was the Republican candidate. It was the summer when terrorism swept across the world from Nice to Dhaka to the Pulse nightclub in Orlando. It was the summer of Brexit when Britain voted to leave the European Union.

It is also the summer of watching hordes of people stumble through public places staring at their smartphones as they tried to capture animated creatures in the augmented reality of Pokemon Go. While the Pokemon Go craze has come and gone, it has left some interesting legal ramifications in its wake.

During the Pokemon Go phenomenon, the leaders of Milwaukee County became frustrated that so many people were wandering through public parks playing the game. The huge influx of people enjoying the public parks damaged landscaping, left trash, and sometimes disrupted other visitors. Rather than just enforce the existing rules against such damaging and disruptive behavior, Milwaukee officials decided to go after the businesses that make games like Pokemon Go. In January, the Milwaukee County Board passed an ordinance that required the companies who created virtual and location-based augmented reality games to get a permit and post a $1 million certificate of insurance in order for people to play their games in the park.

On its face, the ordinance was ridiculous and unenforceable. The fact that the users of a game might damage flowers in a county park hardly makes the producers of that game responsible, nor should a county be able to arbitrarily restrict access to public property for people engaging in legal activities. But the Milwaukee Common Council is not known for its logical dexterity. In response to the ordinance, a company called Candy Lab Inc., which makes a different augmented reality game, sued the county.

Last week, U.S. District Court Judge J.P. Stadtmueller issued a preliminary injunction prohibiting Milwaukee County from enforcing its ordinance saying that it likely violates the First Amendment. This might be the first time in the nation’s jurisprudence that First Amendment protections have been expressly extended to augmented reality games.

In his ruling, Stadtmueller systematically dismantles Milwaukee County’s ordinance and all of its flaws. He says in part, “the Ordinance thus dooms itself in its failure to provide ‘narrowly drawn, reasonable, and definite standards’ to guide the County officials who must apply it,” and that the game in question, “contains the least minimum quantum of expression needed to constitute protectable speech.” In a final slap at Milwaukee County officials, the judge states, “the Ordinance is revealed for its strangeness and lack of sophistication.”

This ruling is a good reminder that while technologies change, constitutionally protected rights do not. In his ruling, Stadtmueller correctly cites and earlier case, Brown v. Entm’t Merchs. Ass’n, in which the Supreme Court clearly stated that, “whatever the challenges of applying the Constitution to everadvancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.”

That statement is a recognition of the fact that rights are endowed upon individuals. Our right to free speech is inherently individual and deserving of protection irrespective of the medium of transmission. The men who wrote our Constitution likely never envisioned telephones, the internet, or Pokemon Go, but they did not need to in order for the protections they wrote to apply. The right is to be protected. The technology is irrelevant.

This same principle applies to other rights as well. We also have a right to keep and bear arms (which is actually a more specific declaration of our broader right to property). And while our founders never envisioned the complexity or sophistication of modern firearms, they did not need to. The right is to be protected. The technology is irrelevant.

Our Constitution is not, nor was it ever intended to be, a living document. It does not need to be. Its brilliance rests in the understanding that human rights live in the bosom of each and every person. We must protect those rights whether they are being exercised with a quill, pen, keyboard, smartphone, musket or AR-15.

SCOTUS protects free speech

My column for the Washington County Daily News is online. Here you go:

With the rush of news lately about Obamacare, Brexit, Trump and everything else happening in our world, one can be forgiven for missing that the Supreme Court of the United States rendered what may prove to be one of its most important decisions protecting the free speech rights of Americans. The background of the case stretches back into decades of American progressive culture.

For decades, many American liberals who preach fidelity to the 1st Amendment and free speech have been carving out more and more speech as unworthy of such protection. In the past, the answer to offensive speech was more speech. Americans were certainly free to say nasty things and express abhorrent thoughts, and other Americans would respond with contrary speech. Such debate is an underpinning of a free society.

Liberals in America have been slowly eroding that robust intellectual ethos by decreeing that some speech is so offensive that the speaker must not be allowed to say it or face severe penalties if they do. This anti-free speech attitude has manifested in our American culture in the form of safe spaces, trigger words, speech codes and the like. On many college campuses and other liberal institutions, the price for saying something that does not please the ruling regime — from Marquette University to ESPN — is ostracism, reprimand, and expulsion.

It was in this intolerant culture that Barack Obama and many his fellow travelers were incubated and they brought it with them when Obama became our president. It was just that sort of intolerance that seeped into the United States Patent and Trademark Office (USPTO).

The USPTO has a very simple purpose. It to register the unique intellectual property of individual Americans. The USPTO is not responsible for enforcing trademarks or copyrights. It is merely an office that evaluates a trademark or invention to determine if it is unique, and if it is, to register it in an official government record. If a person has a trademark or copyright that they think is being violated, then that person must file a civil suit in federal or state court to have the court enforce it.

Under the Obama Administration, the USPTO tried to stretch its mission to not just register unique trademarks,but to enforce a liberal speech code on them and prohibit trademarks that they did not like. Under the auspices of a “disparagement clause,” the USPTO had taken to denying trademarks that would normally qualify, but were deemed “offensive” to some real or mythical constituency.

Such were the rubrics that a band called “The Slants” confronted when trying to register the name of their band. The USPTO denied their application for a trademark because the word “slant” is considered a derogatory term for Asians. The Slants are a group of Asian-Americans who are determined to reclaim anti-Asian stereotypes, so they filed suit against the USPTO to have their name protected. The end result was the Supreme Court ruling of last week in the case of Matal v. Tam.

In a unanimous 8-0 decision, the Supreme Court utterly repudiated the USPTOs position. In a clear, uncompromising ruling supported by the entire spectrum of judicial philosophies on the court, Justice Alito said that “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.’” Indeed. There was a time when all Americans believed that.

The Supreme Court’s ruling has drawn a line across which government entities may not cross. This has implications across our nation in government offices, public universities, and every other area where our government has been firmly pushing the 1st Amendment into a small, controlled, “safe space.” Moving forward, every effort by public institutions to restrict and control speech must be measured against this ruling. Many of them will find themselves failing to meet its standard and Americans must hold them to account.

SCOTUS Upholds 1st Amendment

Excellent.

“The disparagement clause violates the First Amendment’s Free Speech Clause,” Justice Samuel Alito wrote in his opinion for the court. Contrary to the Government’s contention, trademarks are private, not government speech.”

Now it is time for other government bodies (looking at you, public universities) to end their prohibitive practices that ban certain words and phrases.

DC Court Rules in Favor of the 1st Amendment

A victory for free speech.

In a ruling that could bolster the Washington Redskins’ legal case to keep the registered trademarks to their name, a federal appeals court struck down part of a law Tuesday that let the government reject trademarks it deemed offensive or disparaging to others.

The United States Court of Appeals for the Federal Circuit in Washington made the ruling in a case involving an Asian-American dance-rock band that sought to register a trademark for its provocative name, the Slants. The court said the First Amendment “forbids government regulators to deny registration because they find the speech likely to offend others.”

Writing for the majority, Kimberly A. Moore, a judge on the appeals court, said: “It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys.”

Growing Number Approve of Government Suppression of Speech

This is a very, very sad and distressing revelation.

Four-in-ten Millennials say the government should be able to prevent people publicly making statements that are offensive to minority groups, while 58% said such speech is OK.

Even though a larger share of Millennials favor allowing offensive speech against minorities, the 40% who oppose it is striking given that only around a quarter of Gen Xers (27%) and Boomers (24%) and roughly one-in-ten Silents (12%) say the government should be able to prevent such speech.

Frankly, I’m ashamed of my generation (Gen X) too. What is clear is that there is growing support for government speech restrictions. I find this kind of talk offensive. I wish the government would prevent people from expressing such views.