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1st Amendment and Other Concerns On Appeal of Redskins Decision

JusticePicThere has been a lot of commotion over Wednesday’s decision by the US Trademark Trial and Appeal Board to cancel several trademark registrations of the Washington Redskins originally recognized back in the 1960’s by the United States Patent and Trademark Office (PTO). The full decision is here. It is quite long, detailed, and, at least facially, pretty compelling in its finding that the trademarks are “disparaging to Native Americans”.

Before I go further, let me say that I agree with those who think Daniel Snyder and the Washington Professional Football Franchise should change their name. It may not be the most pressing issue in our society, but it is something for which the time has come. Josh Marshall posted his thoughts on this subject at Talking Points Memo, and I think he put it all in excellent perspective and I agree with his conclusions.

The simple fact is we shouldn’t be using whole peoples as mascots for sports teams. Whether or not Indians in America today find it offensive is almost beside the point. The fact that most do is just an extra reason to do away with the practice.

With all I’ve said, there’s a part of me who feels like, ‘We really can’t have the Cleveland Indians anymore?’ It feels like a loss – part of the landscape of American sports I’m attached to. But it’s time.

Well said and, again, I agree. Josh’s entire piece is not long and is worth a read.

That said, and as much as I would like to see the name changed, I have trepidation about the government forcing the issue through agency decisions on what is proper speech, and what is not.

Tradenames and trademarks are, by their nature, really public speech and, thus, at least where they interact with the government, should be entitled to First Amendment protection. Now First Amendment protection is never absolute, but it is presumptively extremely broad. Likewise, First Amendment protections are against governmental action restricting free speech, not necessarily against private persons or entities. If I refuse to listen to you or to print what you have to say, that would be censorship, but it is not First Amendment action. If I am the government and censor you, then that is a different matter and there is a First Amendment issue.

So, here, the TTAB has taken it upon itself to restrict, at least in some regards, the free expression of the Redskins, via refusal to extend the same protection offered other “acceptable” speech and they do so by obvious decree of a governmental entity. Now the TTAB decision made out a VERY thorough and facially compelling case for Read more

Could Santorum’s Radical Religious Fundamentalism Propel US Into Religious Violence?

Despite the fact that our country was founded in part by immigrants seeking to escape religious persecution, the current crop of Republican presidential candidates (with the exception of Ron Paul, who gets no media airtime anyway) have carried the Republican party’s “God and country” theme to even more of an extreme than usual. Taking the clear lead in this push to extremism is Rick Santorum, who now is not only proclaiming his radical faith as a principal reason to vote for him, but he also is deriding the faith of others, primarily that of President Barack Obama.

The Washington Post notes:

When Rick Santorum accused President Obama of having “some phony theology” last weekend, it was neither an isolated event nor an offhand remark.

Instead, Santorum’s comments were a new twist on a steady theme of his Republican presidential candidacy: that Obama and other Democrats have a secular worldview not based on the Bible, one they are intent on imposing on believers.

The Republicans’ religious fundamentalism comes through in response to concrete policy issues:

The relationship between religion and government has emerged as a flash point in the presidential campaign in recent days after an effort by the Obama administration to require religious institutions to include contraception in health insurance plans for employees. All of the Republican candidates objected to the effort, which the administration tweaked after a massive outcry, especially from Catholics.

The “Founding Fathers” that conservative Republicans so want to emulate on some fronts took pains to establish the separation of church and state. Because many had come from persecuted religious minorities, they pushed for the First Amendment’s prohibition both on establishment of an official religion and for the freedom to practice all religions.

Yet, with his extreme devotion to a radical fundamentalist Christian version of Catholicism, Santorum is moving in a direction that could lead directly into the kind of religion-fueled violence we see in other parts of the world. Until now, only the occasional murder of an abortion provider has cropped up as violence that could be attributed to radical religious fundamentalism in the US. But when a candidate for president openly charges the current president with adhering to a “phony theology”, how far away are we from situations like that now in Afghanistan, where violence has erupted over the burning of Korans at Parwan prison?

When radical fundamentalist religion and government are intimately intertwined, violence seems to follow. In the current fiasco in Afghanistan, we see the mullahs in the Taliban calling for violence as a voice for the outrage at the burning:

An Afghan soldier joined protests on Thursday against the burning of copies of the Koran at a NATO base and shot dead two foreign troops, Western military sources said, as the Taliban urged security forces to turn their guns on foreigners.

Protests against the burning of copies of Islam’s most holy book drew thousands of angry Afghans to the streets, chanting “Death to America!” for the third consecutive day in violence that has killed 11 people and wounded many more.

The Taliban urged Afghans to target foreign military bases and kill Westerners in retaliation for the Koran burning at Bagram airfield on Tuesday, later directing its plea to the security forces, calling on them to “turn their guns on the foreign infidel invaders,” it said on its site shahamat-english.com.

But, remarkably, members of the Afghan Parliament have joined in with the Taliban in calling for a violent response: Read more

A Note About OWS and Pre-Trial Diversion in Los Angeles

I have seen a lot of garment rending on Twitter and in discussion forums I participate in about the Los Angeles Times report that a pre-trial diversion option is being offered to some Occupy Wall Street-Los Angeles protesters:

Many Occupy L.A. protesters arrested during demonstrations in recent months are being offered a unique chance to avoid court trials: pay $355 to a private company for a lesson in free speech.

Los Angeles Chief Deputy City Atty. William Carter said the city won’t press charges against protesters who complete the educational program offered by American Justice Associates.

He said the program, which may include lectures by attorneys and retired judges, is being offered to people with no other criminal history and who were arrested on low-level misdemeanor offenses, such as failure to disperse.

“Tin eared!” “Propaganda!” “Re-Education!” “Stupid!” “Tone-deaf!” “By a private corporation??” “Seriously, LA, this is the worst ever!” “Unbelievable!”

Those are a smattering of the responses I saw, and all are from people I know and respect greatly. And they are all wrong to take such umbrage at this report. Here is why.

Pre-trial diversion of criminal misdemeanor charges is an extremely common tool in municipal and other misdemeanor courts (and in some felon courts on the lowest grade offenses such as marijuana possession). It is, from a policy perspective, considered a win-win for both sides; the state and taxpayers avoid the cost of processing the defendant through the court system, and the defendant avoids having a conviction on their record (often avoid even having a formal charge lodged). But whether or not to offer pre-trial diversion lies entirely within the prosecutorial discretion of the state’s attorney. It is an option that can be offered, but certainly is not mandatory.

Just as pre-trial diversion is a voluntary option that does not have to be offered in the first place, the decision on whether to accept the offer is entirely up to the individual facing the charge. There is no punishment whatsoever for declining – none – they will stand in the EXACT same position vis a vis the state as if they had not been offered pre-trial diversion at all, i.e. there will be a municipal offense that has either been charged, or is pending charge, with a one year statute of limitation running.

There has been a hue and cry that – gasp! – the program will be administered by – gasp! – a private company. Well, they always are. I have never seen a diversion program with an educational component that was not farmed out to a private or non-profit outside entity. That is simply how it is done; cities and individual courts are not structured and funded to have classrooms, instructors and curriculum for these matters. And, being as it is a discretionary option to resolve outside of the criminal process (most are contractual, not court compelled) it just does not make fiscal or judicial sense to have it run by the court or state.

As to the content suggested for this particular diversion program offer, it is precisely what you would expect to be offered under the circumstances. Pre-trial diversion at the misdemeanor level almost always involves a perfunctory remedial/instructive class in the subject of the offense. This is the case with defensive driving class to get out of a ticket, it is the case with anger management for assault and domestic violence, it is the case for shoplifting and solicitation programs as well. For the OccupyLA cases, it is hard to imagine a more appropriate subject than a free speech centered Read more