Lawyerly law stuff that's interesting


#1

Since we don’t really have a thread about it and I find it fascinating to delve into the law and whatnot… a thread.

We’ll open with a case that’s currently being argued in front of the SCOTUS right now.

The oral arguments:
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-1293_l6gn.pdf

And law blogger/twittery lawyer input:

This one is kind of interesting, because it’s basically the Redskins argument on trademarks… only the SCOTUS doesn’t want it to be. They refused to take the Redskins case and are taking this one, but also specifically ignoring the Redskins case and any reference to it (which of course they would, it’s a different case, but still interesting that this one got through).

TLDR: A band of Asian folks is called The Slants. They want to register that as a trademark, only the trademark people wont do it because it’s a racial slur against Asian people and they aren’t in the habit of allowing those things through. Now it made it to the Supreme Court who decided to hear it.


#2

Yeah, I was listening about the case on the way back from DC this past weekend. It seems like they’re pretty much stuck setting the precedent.


#3

So this is essentially the same as the Redskins, right?


#4

Pretty much since whatever comes of it will likely be applied there, though some disagree (including Tam the guy from the Slants case). Hard to say and will likely depend on the details of the ruling.


#5

Huh!

Well, I think I am all for empowering artists to use whatever they feel fit to name their groups works or band names. this comes down to a trademark dispute, which is very un rock and roll.

How about calling themselves “The Slantz” or using a / symbol, and going with that. It would get the same message across, but I think would be gray enough to get around trademark laws. I know the point is that they want to take back that negative term, but…

Because, while it is good for people to “take back” negative language, removing some of it’s power. A ruling for that band empowers and enables companies, like the Redskins, to profit off of someone else’s heritage and ethnicity. And long after this band has dissolved into solo acts, and well after the reunion tour, the Dan Snyders of the world can profit off of the image of Native Americans.


#6


This is a law professor that doesn’t understand the First Amendment.

Ken White’s head is currently exploding and it’s great to witness.


#7

Says the Twitter account is protected, and only confirmed followers can read it. What was she saying?


#8

Basically that by letting Milo speak the University was liable for anything that happened and that the First Amendment doesn’t cover Milo being a dick. Her arguments were akin to your average Twitter idiot that doesn’t know anything about the law… only she’s a fucking law professor.

I guess we can all see how well that worked out for her.


#9

Um … she’s a Poli-Sci prof. She has a Ph.D from Princeton, not a JD.


#10

My mistake then (or more accurately Ken’s). Though she’s still teaching politics and doesn’t understand how the First Amendment even works, which one could learn in an afternoon with Google. For such an expert on Civil Rights one would think she’d know what they actually are.

I didn’t exactly hunt her down on the internet and her profile amounts to a big pile of nothing on Twitter.


#11

[quote=“ShivaX, post:10, topic:128097”] For such an expert on Civil Rights one would think she’d know what they actually are.
[/quote]

Do you know what civil rights are? Civil rights activists are not the same as libertarians.

And you can spend an afternoon learning how Ken White thinks the First Amendment ought to work, but that doesn’t mean you’ll agree with him. Learning how everyone else has interpreted the First Amendment, and why, would take much longer than one afternoon. It could practically take a lifetime.


#12

It doesn’t matter what Ken White thinks, it matters what the law and precedent says, which is easily looked up.

I’m not even sure what the hell the first statement means, so I can’t respond to it.


#13

The first amendment absolutely means the government cannot infringe on your right to say offensive things. This is so absolutely defined by a mountain of precedent at this point, as to be pretty much beyond argument at this point.


#14

Someone who studies Civil Rights is interested in the history and practice of racial discrimination. They do not necessarily teach or have any special expertise in first amendment law.

I’ve only seen one quote by the professor in question, and it is correct. Universities do have a legal responsibility to keep students safe & protect public order, and UW did fail its students & community. And whether you like it or not there are plenty of cases in which right to self expression was constrained by considerations of public safety, e.g. “Free Speech Zones” at the presidential inauguration. I don’t necessarily agree with her, but that doesn’t make her an idiot.


#15

Yeah, First Amendment history and law is very complex, and even a brief survey of the constitutional questions that have been debated before courts at all levels around such issues reveals a lot of ambiguity about when and how freedom of expression can be limited. The idea that it was not an absolute right came very early in the republic, and pretty much all legal thought and practice since then has revolved around identifying and enforcing the precise limits of speech. Sometimes it is interpreted broadly, sometimes very narrowly. There is simply no one size fits all to it.

Note, I’m not commenting on this case, as I have zero info on it beyond what I’ve seen here. But I have researched the general history of this sort of legal discussion and man, finding anything “absolute” is tough.


#16

It seems as though they should, shouldn’t they? Given the multitude of legal cases dealing with the interactions between first amendment rights and discrimination?

As well the fact that civil rights applies to ALL rights, for all people, doesn’t it? Certainly some groups have suffered more oppression than others, but groups like the ACLU are not limited to caring about the 14th amendment. They defend all of your constituional rights. They have many times defended 1st amendment rights.


#17

Landmark SCOTUS first amendment cases did not revolve around race. Likewise, landmark SCOTUS civil rights cases did not really center on the first amendment. So historically, civil rights activists devoted most of their attention to other issues, such as voting rights, equal opportunity in employment, interracial marriage, education and affirmative action, etc. I would expect a civil rights scholar to focus on those issues as well.

The ACLU does support libertarians as well as civil right activists, in the same sense that the National Academy of Sciences supports both mathematicians and biologists. That doesn’t mean mathematicians are experts in biology or vice versa.


#18

Civil rights are not restricted to race, as you seem to be suggesting.


#19

The history of civil rights is mostly about race, so that is what most scholars focus on.

It is also about other things, such as gender and sexual orientation, which might interest some scholars (though not this one, judging from the faculty bio).

Perhaps soon we will start seeing more civil rights cases centered on religion, and a new crop of historians might be interested in how the first amendment interacts with religious expression.

Regardless, the UW case is about political expression. I wouldn’t be surprised to find few civil rights scholars with expertise on the subject.


#20

Well, only from the perspective that race created one of the main factors in the US which formed a basis for denying a person their civil rights.

But civil rights are simply your rights as a person. And your first amendment rights are absolutely a critical component of your civil rights.

This is why the ACLU takes up those cases. Because they are the American CIVIL LIBERTIES Union, and civil liberties include all of the rights established under the constitution.