Lanham Act

Morning Ethics Warm-Up, 6/25/2019: The Greatest Morning Warm-Up Ever Blogged!

/ Jack Marshall / 17 Comments

The movie “The Greatest Story Ever Told” was far from the “Greatest Movie Ever Made,” as the Duke’s casting as a Roman soldier demonstrated vividly.

OK, not really, but it better be good after yesterday’s potpourri never made it off the launch pad due to a series of unfortunate events. I’m using “The Greatest Legal Ethics Seminar Ever Taught!” as a title for an upcoming program I’m writing now, so the rhetoric is on my mind. My teaching partner complained that the title really puts the pressure on us to be outstanding. And that’s the point…

1. Harvard’s new President punts. Of course. The Harvard alumni magazine this month was notably light on criticism of the Ronald Sullivan fiasco, with only two critical letters on the topic, one of which made the suggestion that it might be a “conflict of interest” for someone who is defending a #MeToo villain to also serve as a residential faculty member (what was previously called a “House Master,” but that triggered some delicate students who felt it evoked slave-holders. No really. I’m serious. I don’t make this stuff up. Organizations capitulate to these complaints now, like Major League Baseball changing the name of the “Disabled List” because disabled rights activists complained). It is assuredly NOT a conflict of interest, though, by any definition but an erroneous one.

Deeper in the magazine, we learn that new President of Harvard, Lawrence Bacow, was asked during a faculty meeting about his views on the episode. His response was essentially a Harvard version of Ralph Kramden’s immortal “huminhuminahumina” when “The Honyemooners” hero had no explanation for some fiasco of his own engineering. Bacow said he would respect “the locus of authority,” meaning College Dean Rakesh Khuratna, who fired Sullivan after joining in student protests over the law professor and lawyer doing exactly what lawyers are supposed to do.

So now we know that, not for the first time, Harvard is being led by a weenie. What should he have said?  How about “I am firing Dean Khuratna, and offering Prof. Sullivan his position back. Any Winthrop House students who feel  “unsafe” are welcome to transfer to Yale”?

Most news media gave inadequate coverage to this story, and none, in my view, sufficiently condemned the university’s actions or the un-American values they represent. At least the New York Times is keeping the episode before its readers by publishing an op-ed by Sullivan titled “Why Harvard Was Wrong to Make Me Step Down.”

2. Insuring the life of a son in peril. Is this unethical somehow? It honestly never occurred to me. When I had to give a speech in Lagos, Nigeria, one of the most dangerous cites on Earth, my wife tried to take out a policy on my life with her as the beneficiary. I thought it was a good and prudent idea. But in Phillip Galane’s “Social Q’s” advice column, a son writes that he is still angry, decades later, that his late father did this , writing in part, Continue reading →

Ethics Alarms Reader Poll: Will The SCOTUS Decision on “Fuct” Be Unanimous?

/ Jack Marshall / 24 Comments

It should be. It’s amazing to me that this issue has to take up the time of the Supreme Court, it’s so obvious.

Last week, the U.S. Supreme Court agreed to review that case of Iancu v. Brunetti, and decide whether the Lanham’s Act’s ban on “immoral” and “scandalous” trademarks violates the First Amendment. The U.S. Patent and Trademark Office had refused to register a trademark for a line of clothing called “FUCT,” reasoning that “FUCT is the past tense” of a vulgar word and is “therefore scandalous,” a federal appeals court said. The U.S. Court of Appeals for the Federal Circuit had struck down the ban on scandalous and immoral trademarks in December 2017,  but clothing designer and artist Erik Brunetti had agreed that the Supreme Court should hear the case even though he had won.  The cert petitions are here and here.

The Supreme Court struck down another provision of the Lanham Act in June 2017,  when it held that the ban on “disparaging” trademarks violated the First Amendment. The case, Matal v. Tam, was filed by an Asian-American rock band that wanted to trademark the name the Slants. The vote was 8-0 because Justice Neil M. Gorsuch did not participate in the decision. That decision also squashed efforts begun by Democrats and the Obama Administration to force the Washington Redskins to give up their “offensive” team nickname. The team’s trademarks had been cancelled in 2014 following complaints from “offended” non-football fans and a small minority of Native Americans. Justice Samuel Alito wrote for the Court,”It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”  The opinion rejected the government’s argument that protected trademarks become a form of government, rather than private, speech. Continue reading →

Unethical Web Site Of The Month: No Hate Speech Movement

/ Jack Marshall / 43 Comments

hand over mouth

Right before the Paris terrorist attack on “Charlie Hebdo” I was going to post about No Hate Speech and decided, “Eh, this is too stupid.” Then, reflecting upon it in the light of the occurrences in subsequent days, I realized most of the many, primarily  young people, mostly well-meaning, sensitive, loving individuals who are represented on this almost unnavigable website—I hate that— would be making excuses for the Islamic terrorists who executed the French cartoonists, since by their definition, they engaged in “hate speech.”  ( “Of course terrorism is wrong, but...”)  They ended it too, didn’t they? At least they ended those particular speakers.

Free speech is being whittled away by the attempts to define free speech as excluding “hate.” Democratic Senator Ed Markey from Massachusetts—you know, that cradle of freedom, democracy, protestm ringing words, and me—has  introduced legislation calling for the government to investigate “hate speech” on broadcast, cable, and Internet outlets. As Alan Derschowitz noted, the effort and the logic surrounding the bill endangers liberty:

“It is a worthy effort, but my prediction is that it either leads to the conclusion government cannot do it, or that they will do it and that will infringe on First Amendment rights. Governments are trying to also make changes to hate speech law and debating the issue in Canada, at the United Nations, and even right now in Israel. It is a worldwide trend, but it is a really dangerous trend.”

I guess because Derschowitz is an upstanding Democrat, he can’t bring himself to say that it is not a worthy effort. It is an irresponsible trend, with a campaign that depends on ignorance, historical amnesia, naivete and hypocrisy. I was trying to remember why I, last year, allowed a passionate and prolific commenter who was prone to rash and obscene language, often attacking other commenters. NOW I recall: This was the reason. The movement to censor “offensive” speech is a leap onto Markey’s slippery, censorious slope. Hate is a legitimate, if ugly sentiment, and it has its place. That place is in our heads, and sometimes, out of our mouths or pens. You don’t like it?  I’m listening. I lost a lot of readers who were offended by Scott’s remarks. Well, I decided that that the ethical thing was to let those who objected 1) learn not read his comments or 2) talk him out of it. Continue reading →