This is a win for a free society
No, it's a free speech question with regard to intellectual property, to wit, “may government engage in content-based discrimination in deciding the allocation of intellectual property, specifically trademark, rights.”
Do we want to be in a society where only things deemed non-offensive are protected? Seems maybe a little arbitrary and capricious?
Personally, I'd rather ditch most IP entirely, but that's rather a different issue.
Well, offensive to whom? There's obviously "Nigger"... But wait. It's offensive if a white person calls a black person that. But many a time, blacks will call each other that to 'own' the word and reclaim its power. So we have an immediate example of an offensive word that isn't offensive in many cases.
Or in recent years, simply asking "Are you a man or woman?" is offensive if they pull the 'not gender binary'-card. Yeah, we can ignore the fact that you either have sperm or eggs, or genetic anomalies that have interesting medical conditions.. But the question in certain groups is "Offensive".
Then there's the last group of people who are, what I call, professional victims. I've not seen a conservative one of these yet. They primarily are in the extremist liberal camps, and the smallest innocuous things will set them off in tirades. To them, everything they don't do is "Offensive". And this "Offensiveness" changes as per person. I usually treat these people by ignoring them. You cannot win. (An example of one of them is demanding to have others use some pronoun like hir or zir or zem. And they will get angry if you ask, don't ask, use a different one around other people or... )
Edit: I try for a variant of the Robustness Principle. Unless someone is intentionally mocking me, if they get some term wrong or use no longer "politically correct" terminology, I try to look past that for their underlying idea.
Donald Trump. Professional victim since 1946. Far-right conservative since at least 2008. Recently threatened to cut off relations with several of our closest allies because the elected leader didn't congratulate him quickly enough after November 8th. Has claimed since his inauguration that (a) Democrats, (b) Republicans, (c) the government, and (d) the Media are out to get him, despite being part of each of these groups during the last few years.
heh. The "War on Christmas" sprang to mind without even thinking about it. I mean, a large number of people spent Christmas 2015 offended by the color a cup wasn't.
Outside of very narrow circumstances where it's actually relevant, asking someone's gender identity or sex is likely to be offensive even without a forced binary choice and even if they don't subscribe to a non-binary identity, simply because it implies that they are going to be judged on that rather than their ideas or actions (or by how their ideas or actions fit your perception of sex/gender roles rather than the merits of the ideas/actions on their own.)
Ive seen plenty of them. They rail against any sign of diversity as an attack on their white, heterosexual normalcy. Check out the forums on IGN. They are outraged by the sight of a penis in a tv show (American Gods) or a person of colour cast in a leading role.
I've seen a bit of these types, but usually they wore iron cross rings, or white robes (KKK). Even some of the more extremist Christians I know haven't acted quite like that. Yes their preference is very much against homosexuality and more liberal policies of "Do what you want as long as you don't harm others", but I haven't seem them go out of their way like the extremist liberal ones do.
I've even been screamed at by some extremist liberal woman because I (a male <shudder>) dared to walk through a door and hold the door open for her, err, hir, err, "it". And note, even if you can't see it, am a bisexual male.
I want to believe that's not what you're saying, but I'm having a hard time parsing something different out of your comment.
Maybe the conservatives have their own. Pretty sure they do. Ive seem some kicking and screaming with Christianity, but even in Indiana, apathy with regards to religion seems to be taking more of a hold. And there's that Starbucks cup thing.. I'm 100% sure that was social media "fake news". I never saw anyone in real life actually complaining about that, other than for a week or 2, it was bandied around everywhere.
Then again, the ones who've consistently yelled and screamed and flailed around are the special snowflake extremist liberal SJWs over perceived and non-existent slights. And yes, I'm a liberal complaining about how extremists are ruining liberalism, because what they want freedom for you to comply with them.
Like the guy who goes to places and gets himself into horrible situations on YouTube Live or Twitch, when people call in a Swat Team onto his location.
And I don't even know anything about his politics, I just know that he has a following, and he literally makes (was making?) money off of his streams, which people were attracted to based on wanting to see harm come to him!
Literally inconveniencing airplanes and airport concourses full of people so that he could get some more media attention on his scam.
So, I think that's despicable and I've never looked up his streams as a result, because I don't want him to profit. Like I said I don't even know his politics, and I won't say anything about mine.
But to argue the singular point, I think there are some professional victims and it is well... dismissive, to be dismissive of them.
Really? Because I seem to not be able to take a step without tripping over the mainstream conservative Christians whining about the persecution of "people of faith" everytime the government fails to sufficiently privilege their religious viewpoint in public policy, or some private actor fails to acknowledge their preferred religious holiday in standard commercial greetings, or...
Among numerous other conservative examples.
Boy, you live in some bubble don't you. There are so many examples, it boggles the mind that you haven't seen them.
There are already many limitations on truly free speech, as there should be. Should this type of speech be limited? It's a valid question.
My main objection in this thread was to the specific statement: "This is a win for a free society." It implies that the defense was fighting against a "free society." I'm saying that two people can disagree on this specific matter while both being in support of a "free society." There's no need to polarize this issue in terms of free vs. non-free.
The trademark office interpreted the statute one way, the plaintiffs another way, it worked its way through the courts and the decision came down in the plaintiffs' favor, so the trademark office will change its interpretation. The system works.
There's no need to villainize the trademark office for disagreeing on the interpretation of a statute that hadn't yet been clarified by the courts.
Some people argue that a hijab is empowering to women, and is a sign of freedom. Some argue the exact opposite. Just because one group says they believe in a given thing doesn't mean they actually do things which promote the thing they claim they support.
You're correct that Congress may choose not to exercise that power, but they are prevented from being able to exercise that power arbitrarily, and especially not on matters of obscenity or indecency without passing(failing?) the Miller test[2], which this clearly doesn't, and "The Slants" arguably satisfies none of the conditions.
[1] - https://en.wikipedia.org/wiki/Sable_Communications_of_Califo...
Since then though, the FCC has been more prudent with what they go after, and the fines have are low enough that it serves everyone's interests to keep everything de rigueur.
NBC doesn't want to have to worry about having to compete with smut on the public airwaves, or having to big against Pornhub in the next spectrum auction. Meanwhile, the FCC of course enjoys the presumption of authority over the airwaves with a quasi-plausible veil of content neutrality.
By your definition, passing laws is a privilege too, because Congress can choose to not do it. Perhaps that's correct usage of the word privilege but I don't really see it
If we live in a society where anything offensive can be legislated, then one group will seize the power to dictate what is considered offensive.
Each person should have their own freedom to decide what offends them or not. But they shouldn't be protected from being offended... that would be impossible, ultimately, and society would no longer be free.
From the opinion: "If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence o rmuffle the expression of disfavored viewpoints."
I have a hard time with this because I can't see how the dots connect.
If government grants exclusive use of some term to me, that means you can no longer use the term in particular contexts. That's more stifling than having no protection, isn't it?
So, because it happens to be stifling private speech to issue a trademark or to not issue a trademark, the Government can only do it for narrow reasons that survive the very stringent tests the Court has set up. The largest one is that the Government cannot engage in "viewpoint discrimination." They may not prevent speech that is offensive because it happens to offend someone, in other words. This wasn't really in dispute, anyway, as it is well established. The government thought they could apply one of the exceptions -- "government speech" -- and the Court ruled they could not.
The Supreme Court unanimously disagreed with your perspective.
e: c.f. the article
> "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."
For example, the band said that you can't get signed by a label if you don't have a trademark on your name. Also, you can't prevent others from selling merchandise bearing your name.
So while the government wasn't telling them that they couldn't use the name, the government's desired outcome would have made it more difficult for the band to survive. Same for the Redskins — and how much money do you think they make on merchandise?
True. The govt makes lots of enforcement/promotion decisions, many decisions that make things harder for other people/companies (and easier for others). In fact, if a govt decisions has an absolutely equal impact on all parties, it's probably not a law that does anything.
I'm not saying there isn't a free speech issue - just that saying "by refusing to limit free commerce the govt is infringing on free speech" show the two sides of the argument, both reasonable.
The govt wasn't refusing to enforce with the intention of HARMING anyone directly (probably), it was trying to avoid taking enforcement action that WOULD harm people. Not specific people, but the protected class of race in this case. If you think otherwise, imagine the hypothetical where this occurs, realize some people think of it this way, and see that it means the disagreement is reasonable.
I'm probably 60/40 in agreement with the court decision, but that 40% is because I can see the arguments on the other side as well. Your premise that the harm to the team is a problem doesn't hold up overall: It's a tough concept to accept that _intent_ makes a law valid/invalid.
Make voting harder with the intent to combat voting fraud, the law is likely valid. Make voting harder with the intent of disenfranchising a particular group, the law is invalid.
A cop shoots someone because they felt threatened, is legal. A cop shoots someone because they want to, it's not legal.
Agree that it SHOULD be that way or not, this is pretty well established in the court system for quite a while. Which means a govt decision that hurts someone (not this case, a generic one) because of a non-discriminatory INTENT can be valid, while the same decision made for discriminatory reasons can be invalid because of that intent.
There are plenty of other arguments that can be had here (Was this decision intentionally discriminatory? Does refusing to enforce (i.e. not taking action) equate to taking action?) but that it harms the team is not terribly relevant.
For example, should copyright laws depend on whether the thing being protected is offensive?
Given that the government protects many other forms of offensive speech in much the same way I find that rather hypocritical. Should authors be allowed to plagiarize if the content is "offensive"?
There are lots of items that can be used to debate the for/against of the topic: Free Speech vs the government protecting hate speech, if protecting is the same as promoting, the role of government enforcement in commerce, etc. but I can't see "property".
In fact, unlike copyrights, the point of trademark is to prevent consumer confusion. It's not something granted to your for YOUR benefit, but rather for the benefit of consumers. Someone can trademark the same name in a different (but potentially related field) if there is no consumer confusion. Likewise, a trademark in an unrelated field can be denied or ruled invalid if it is shown that there IS consumer confusion. (example: Sleep Inns were original McSleep Inns, until McDonalds (the food manufacturer) shut that down. (http://www.nytimes.com/1988/09/19/us/mcsleep-loses-to-big-mc... - That article is thin, but my understanding is that McDonalds actually used polling to help prove that it was confusing, but that might have been a different case.). You can BENEFIT from this (by marketing your product to build a brand with a positive reputation), but a govt rule that benefits you is not the same as that rule being your property.
> If the government can arbitrarily chose which private property it will enforce, you open up the possibility of rife corruption.
I'd drop "arbitrarily" from this statement, as it seems a bit circular. The decisions aren't "arbitrary" - the line of what is and isn't "hate speech" is subjective and fuzzy, but almost all of the law boils down to a subjective fuzzy line (the "reasonable person" argument). Unless you're saying that corruption will MAKE it arbitrary, at which point it's not the arbitrariness that makes it potentially corrupt, but the corruption that could make it arbitrary. Drop the "arbitrarily" and I think the statement is fine, even agree with it (though I don't consider trademarks to be property).