Trademarks and free speech

On the blog Above the Law, Joe Patrice writes about "the path that most defines the Roberts Court: the provisions of the Bill of Rights are for making money." Sure, if you ignore all of the decisions of the Roberts court that don't suggest that.

Patrice points out that "no one was trying to ban any speech here" and continues,

Federal trademark protection flows from the congressional power to regulate interstate commerce, and in light of the broad grant of power the Framers gave the government here, it’s entirely reasonable for the government to impose limits on what marks it gives the imprimatur of nationwide recognition, in the interest of regulating the market. This isn’t banning someone from expressing a disparaging view. It’s not even banning someone from making money off a disparaging view. The statute barred the federal government from inserting itself into a potential dispute between someone trying to make money off a racial slur and someone trying to make bootleg products to make money off that same racial slur. And, as already discussed, it doesn’t even stop someone from suing the bootlegger.

Such limits stop being "entirely reasonable" when they are based on viewpoint. In fact, a long line of precedent forbids government to impose such viewpoint-based restrictions, even when government was under no Constitutional obligation to provide the service under consideration in the first place.

Someone actually wrote this: The Federalist on pornography

In The Federalist, Dustin Murphy writes a screed against pornography that is larded with the usual proofs by assertion. A few passages stand out, though.

According to Murphy, the antisocial effects of pornography include the following:

One of the greatest tragedies of porn’s antisocial effects is that it fuels an anti-child culture. Thinking sex should be open to procreation, or that the two go hand-in-hand, is regarded like VHS tapes: out of style. Some people consider parents with three or more children to be crazy, and children are generally viewed as a burden. Anyone with a large family has probably experienced negative comments in grocery stores or coffee shops.

In addition to the false dichotomy, the cause of the anti-child culture, if such a thing exists, is pornography because Murphy says so.

As for whether one person's use of pornography harms others, Murphy argues,

Recording sex devoid of love violates a couple’s right to share authentic human love and to experience the whole person, not just private parts, during sex.

No, it doesn't. People are still free to do just that. Murphy's argument is just a short stroll from "Freedom is slavery."

He continues that

laws ought to promote the common good, which is to perfect the community.

In addition to being exactly the sort of collectivist reasoning that conservatives at least used to oppose when liberals used it, that argument presupposes that perfecting the community is possible. It is odd that someone who elsewhere expresses a belief in God argues that secular government can perfect the community. Besides, I am not sure that I should want to live in Murphy's perfect community.

If we talked about the entire Bill of Rights the same way we talk about the Second Amendment

First Amendment: In 1791, "speech" meant just speech, and "press" meant a single-sheet, manually operated press. The framers couldn't have imagined that today, with the click of a mouse, you could communicate with millions of people worldwide and send them hate propaganda to incite violence and hate. If only one life is saved, it will all have been worth it.

Third Amendment: That was then, but in today's more complex society, we have a standing army to protect us, so get out of the way and let it do so.

Fourth Amendment: "The right of the people" clearly refers to a collective rather than individual right, or the framers wouldn't have used the term "the people." Also, in 1791, "papers" literally meant just papers. The framers couldn't have imagined easily portable devices storing gigabytes or even terabytes of information, which could concern terrorist plots or child sexual exploitation, things that government could stop if given unfettered access to that information. Are you with me, or are you with the terrorists and the kiddy fiddlers?

Fifth Amendment: Never mind what we just got through saying about what words meant in 1791. "Due process of law" means only what Diane Feinstein thinks it should mean today, with no reference to what it meant back then.

Sixth Amendment: This gets in the way of locking up bad guys who could otherwise roam the streets and kill people, so if you oppose reasonable restrictions, you must be some sort of death cultist.

Seventh Amendment: This needs common-sense regulation because the framers couldn't have imagined how much less $20 would be worth today than in 1791.

Eighth Amendment: It's just common sense that government should get to decide what otherwise vague terms like "excessive" and "cruel and unusual" mean.

Ninth Amendment: Don't you think I have a right not to have bad people do bad things to me because they abused their rights under the other provisions of the Bill of Rights? If this right doesn't come under "others retained by the people," I don't know what does.

Tenth Amendment: This is just empty verbiage because government is just giving itself the right to do things that it already had the right to do.

Elane Photography: It's time to switch talking points.

In the aftermath of the U.S. Supreme Court's denial of certiorari in Elane Photography, the socially liberal left and the socially conservative right have abruptly switched talking points on whether we should be left alone to live life as we see fit or submit to government to impose a common moral code on all of us, on whether we should trust democracy or ask the judicial branch to protect our rights from the howling mob. Be careful what you wish for; you just might will get it.

Let's rely on a "14th Amendment" doctrine that I just made up.

The federal government is expected to hit the debt ceiling later this month. People are calling on the President to exercise his supposed power under the 14th Amendment to address the debt ceiling, a power that he supposedly has because the validity of federal debt "shall not be questioned." Not so fast.

The 14th Amendment, § 4, first sentence, actually reads,

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

Note those pesky words "authorized by law," which keep getting left out. If I didn't know any better, I'd almost think that people avoid quoting those words because those words get in the way of the desired result. Who makes laws again? The next section of the amendment gives a clue:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Free speech and hate speech, or: The obligatory Michelle Shocked post

Michelle Shocked has the right to be Princess Clara on the subject of same-sex marriage and then to backpedal furiously when called on it. Concert-goers have the right not to support her, as do performance venues in the absence of a contractual obligation to do so.
People have responded to Shocked in ways like this:

Freedom of speech and artistic expression are critically important, but this isn't free speech. This is hate speech.

In fairness, the petition calls for voluntary measures rather than government censorship. Yet in making the distinction between free speech and hate speech as though they were mutually exclusive categories, which, at least in the US, they are not, the author of the petition plays a dangerous game. For one thing, our opponents have become adept at playing the hate-speech card whenever anyone dares to examine their beliefs critically.

The right to keep and bear muskets

In response to the Newtown shooting, people are arguing that the word "arms" in the Second Amendment should be construed to mean those arms that existed in 1791. I explained back in 2000 here why that was not such a good idea:

Helier Robinson (Letters, February 12th) suggests that an originalist interpretation of America's Second Amendment to mean the “right to bear swords, pikes and muskets” would make gun control much easier. If courts adopted this reasoning, what would stop them from limiting the First Amendment's speech and press clause to the use of 18th-century communication technology? This would make censoring the Internet a great deal easier.

Calm down, Princess Clara: My thoughts on the Nevada marriage ruling

As you may know, a federal judge in Nevada has ruled against marriage equality in that state. The opinion shows the intellectual dishonesty that so often characterizes 'phobes. For example, the judge tries to distinguish the case at bar over Loving v. Virginia,, which struck down laws against miscegenation, in the following manner:

Here, there is no indication of any intent to maintain any notion of male or female superiority, but rather, at most, of heterosexual superiority or “heteronormativity” by relegating (mainly) homosexual legal unions to a lesser status. In Loving, the elements of the disability were different as between Caucasians and non-Caucasians, whereas here, the burden on men and women is the same. The distinction might be gender based if only women could marry a person of the same sex, or if only women could marry a transgendered person, or if the restriction included some other asymmetry between the burdens placed on men and the burdens placed on women. But there is no distinction here between men and women, and the intent behind the law is to prevent homosexuals from marrying.

Here the judge puts words into the Loving court's mouths, since he emphasizes an argument that the Loving court explicitly declined to consider:

Appellants point out that the State's concern in these statutes, as expressed in the words of the 1924 Act's title, "An Act to Preserve Racial Integrity," extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. Appellants contend that this distinction renders Virginia's miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve "racial integrity." We need not reach this contention, because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the "integrity" of all races.

The opinion also includes the following rant, which works best if you imagine that it is being read in a Princess Clara voice:

Should that institution be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.

An argument I think advocates of marriage equality should stress (2)

As I noted earlier,

we should decide the scope of secular marriage under secular principles rather than any particular church's interpretation of Scripture. This argument must be a strong one, since whenever I bring it up, the 'phobes immediately change the subject.

Now, it appears that the Second Circuit agrees with me. From the opinion:

But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status--however fundamental--and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

Free speech and hate speech: Be careful what you wish for.

People in the politically correct left, in America and in other countries, often say that America goes overboard in protecting freedom of speech and that freedom of speech should sometimes bow to the need not to give offense. The real-world effect of implementing such a viewpoint can be seen here:

Angry Catholics have accused an Indian skeptic of blasphemy after he argued a dripping crucifix was caused by faulty plumbing rather than divine intervention, leaving him facing a possible prison term.

* * *

The legislation bans "deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs" -- a rule Edamaruku believes runs counter to freedom of expression.

The argument that concerns over hate speech should outweigh the First Amendment is weak enough; the argument that they should do so only when we want them to is just nonexistent. People who want do-good control-freakery to trump the First Amendment should remember the iron law, "Me today, you tomorrow."

It's not okay this time because it's your side that's doing it.

Judicial activism, the saying goes, is any court decision that you don't like. I've criticized conservatives for cherry-picking the judicial activism to which they object, so now it's liberals' turn.

In this column, E. J. Dionne excoriates the conservatives on the U.S. Supreme Court as “judicial activists” for wanting to strike down the individual mandate in health-care reform. Rather than deign to address their position on its Constitutional merits, he uses language that could have been copied and pasted from conservative screeds against liberal “judicial activists”:

[L]egislative power is supposed to rest in our government’s elected branches. * * * It was nice to be reminded that we’re a democracy, not a judicial dictatorship.

Regardless of your views of the individual mandate or of health-care reform in general, there is just no principled reason for defending Constitutional limitations on government power only when your team favors them.

My latest letter to the editor

... in The Washington Post is here.

Westboro Baptist and freedom of speech (2)

In one of the ironies of American political thought, the P.C. left is trying to out-Alito Alito on Snyder v. Phelps. Many commenters say that what Westboro Baptist Church did was hate speech and that hate speech is (for some unspecified reason) not free speech. I believe that we are playing a dangerous game if we adopt this argument, as homophobes increasingly characterize any disagreement with their goals as hate speech against them.

Westboro Baptist and freedom of speech

I agree wholeheartedly with the outcome of the U.S. Supreme Court's decision in Snyder v. Phelps. I am less thrilled with the reasoning used, which relies on a "hierarchy of First Amendment values" that in my view exalts the collective over the individual.

Some have asked where we go now. I think that we should let the Phelpses keep on doing what they are doing, which is whipping up antipathy for their own views, often among people who might otherwise sympathize. The Phelpses perfectly illustrate the principle that the most effective witnesses against a belief system can be its own believers.

My latest letter to the editor

...is on the Ten Commandments in public schools, here.

My latest letters to the editor

They're both on Constitutional issues, and they're the last letters here and here. It seems that everyone likes the Constitution, as long as it backs up our personal opinions of what it should say. That doesn't sound familiar, does it?

Thanks again, Fierce-Advocate-in-Chief (2).

The Department of Justice has announced that it plans to appeal the ruling striking down "Don't Ask, Don't Tell." In other fora, I've pointed out that notwithstanding an urban legend to the contrary, the DOJ is under no Constitutional or legal obligation to appeal and in fact has previously declined to appeal rulings striking down federal laws. The Obamapologists have responded with that all-purpose scathing rebuttal, "La la la la la, I can't hear you."

Once, I even asked politely (well, politely for me) for a blue-book citation to whatever legal principle says that the DOJ must appeal. I still got no takers.

Thanks again, Fierce-Advocate-in-Chief.

The Justice Department has appealed court rulings striking down the Defense of Marriage Act, and it may well do so on Don't Ask, Don't Tell. The spin is that the Justice Department is required to appeal court rulings adverse to the U.S. Government. There's just one slight problem: No, it isn't required to do so. It has not always done so, and it has not even always done so under the Obama administration.

The innocent have nothing to hide.

Since this post, I've seen the light. The government should have an expanded ability to get the plain text of Internet communications. The innocent have nothing to hide.

While we're at it, let's place a surveillance device (the name "Telescreen" comes to mind) into every room of every residence, or just build all residences out of glass. The innocent have nothing to hide.

All correspondence must be public. If you have something to say to someone, say it on a bulletin board (physical or electronic). The innocent have nothing to hide.

We should copy whatever surveillance techniques the Warsaw Pact countries used. The innocent have nothing to hide.

Let's repeal the 4th-6th Amendments. The innocent have nothing to hide.

President Barack H. Bush

I thought we were supposed to vote for Democrats to protect ourselves from this sort of thing. The Obama administration is seeking to expand the security state in a manner of which Dubya would be proud. For that matter, even the rulers of those famously freedom-loving countries, Saudi Arabia and the United Arab Emirates, would be proud.