A New Hanover County Board of Education member said a resolution to censure her wont deter her from her mission to hold those on the board, and in the school district, accountable.

The board passed a resolution to censure member Judy Justice in a 5-2 vote Friday afternoonafter Justice was accused of revealing confidential personnel information to someone who was not permitted to have it. Justice said after the meeting she felt the move was personal, and she plans to continue pushing for more transparency from the district going forward.

Im fighting the battles trying to help the district, and when they fight me, theyre in essence fighting against doing good things for the district, Justice said.

Justice and board Vice Chairwoman Stephanie Walker were the only two members to vote against the censure. A censure does not result in any action it's simply a tool to let Justice know the board does not support or agree with her actions.

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Kraybill said after the meeting she was made aware of allegations Justice had violated the code of ethics by disclosing personnel information in the fall. The board previously passed a vote of no confidencein June after then-Chairwoman Stefanie Adams accused Justice of lying during a board meeting.

DuringFriday'smeeting, the board went into a closed session to discuss personnel matters that could not be disclosed to the public. After, Justice was given a chance to address the board and thepublic andbrought forth a list of 10 ways other board members had violated the boards code of ethics that had gone unaddressed.

This witch hunt is personal and everyone on this(board)knows it, Justice said during her statement. It is time we did our job for the people and serve the people, not some peoples individual agendas.

Justice also alleged Superintendent Charles Foust had accused her of harassing him. Attorney Colin Shive interrupted Justice, saying he would advise her to move on from that subject to avoid revealing further personnel information. Kraybillsaid the subject was not germane to the topic at hand.

Justice went on to say it was her first amendment right to bring up the accusation and said she had no intention of bringing up confidential personnel information.

As Justice continued her statement about the alleged harassment, Foust interrupted her, saying he had 275 emails to prove she had harassed him.

I will provide emails if thats what you want, Foust said. You cannot and you will not do that.

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Justice said the emails she sent him had to do with her asking him to do his job. She said after the meetingFoust has not communicated with her in months, though its district policy that the superintendent communicates regularly with members of the board. She alleged he does not respond to her emails or phonecalls, andsaid thats concerning as shewas elected to represent the public before the school district.

Kraybill quickly called the meeting to recess, and she and Foust went to a separate room to speak with Shive. When they returned, Shive called Justice back and spoke with her for several minutes behind closed doors. Walker also went with Justice to speak with Shive.

When Justice returned, she said she felt the censure vote was taking away from important issues going on in the district, like the continued strain on staff and students from the COVID-19 pandemic and decades of sexual abuse allegations against former teachers and administrators.

Several community members attended the meeting as well, holding signs reading I support Judy and attempting to speak with board members while they recessed.

How is this whats best for the kids? one audience member asked theboard, butdid not receive a response.

Kraybill said after the meeting the vote was not personal, and she hopes the board can be unified moving forward to get to those important topics impacting the district.

The community has been very critical of this board, and boards before us about not being transparent, not handling issues in a timely manner," Kraybill said. When I found out that this had occurred, I just said we need to jump on it and get it resolved.

We've got that behind us, and we should be ready to go,shesaid.

Reporter Sydney Hoover can be reached at 910-343-2339 or shoover@gannett.com.

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'This witch hunt is personal': School board votes to censure member in tense New Hanover meeting - StarNewsOnline.com

Kentucky state Sen. Danny Carroll is back this year with another controversial proposal that would shield personal information about a wide range of "public officers" and their families from public view and would let them sue journalists and otherswho spreadsuch details.

The Kentucky Press Association sharply criticized the legislation this week, saying it's unconstitutional and "a broadside attack on the First Amendment" that violates Kentuckians' due process rights and "will chillthe ability of citizens and journalists alike to speak and write about" public servants.

"It will conceal from the public basic information that has long been available without incident and is essential for citizens to oversee elected and appointed public officials paid with their tax dollars," the KPA's general counsel, Jon Fleischaker and Michael Abate, said in a statement.

"It also will jeopardize the ability of businesses, agenciesand courts to perform routine public functions that depend on the free flow of information regarding public records concerning birth, death, marriage, insurance, property ownership, taxesand political contributions."

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Carroll's new legislationresembles a hotly debatedbill he filed last year.The legislature approveda modified version ofthat proposal, but Gov. Andy Beshear was able to veto it.

Carroll, R-Benton,was unavailable for comment Wednesday, but an assistant said hehas been working on this legislation with Rep. John Blanton, R-Salyersville. Blanton was involved in modifying Carrolls public records bill last year. He could not immediately be reached for comment.

He also sponsored a highly criticized proposal in 2021that would have made it a crime to insult a law enforcementofficerto the point it could provoke a violent response from them. That bill passed only the Senate, and he recently filed a largely similarbillfor this session.

Carroll's newpublic records legislation, Senate Bill 63, would:

SB 63 also would prohibit public agencies from disclosing "personally identifiable information in records that would reveal the address or location of a public officer" if that person says they don't want that information released.

Amye Bensenhaver, co-director of the Kentucky Open Government Coalition, told The Courier JournalCarroll's latest bill would upend Kentucky's open records law and morph it into a non-disclosure law.

Personal information already is well-shielded by the current law, said Bensenhaver, a former assistant attorney general, adding:"The truth is the privacy exception to theopen records law is so well-developed, and so well-interpreted and understood, that it will in most instances protect this type of information."

More: Gov. Andy Beshear proposes billions for health and human services in 2-year budget plan

She also predicted Carroll's bill would be struck down in court if it becomes law,with taxpayers footing the bill for the legal proceedings."This bill cannot survive any kind of challenge," she said.

Fleischaker and Abate, of the Kentucky Press Association, said the way thisbill is writtencould leadpublic officers to claim basic details, such as their name or employer,must be withheld.

Among other consequences,they said: "This could result inagencies repeatedly withholding public records that have been critically important to exposing egregious abuses by law enforcement officers..."

They also criticized the bill's incredibly broad definition of "immediate family member" as well as the wide array of data the bill classifies as "personally identifiable information."

Fleischaker and Abate raised major concerns as well about how the bill would let public officers and theirso-called immediate family membersfile civil lawsuits against peoplefor posting "personally identifiable information" about them.

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Carroll's bill says someone can be sued for thatif:

"This significant financial liability may be imposed with merely a subjective assertion that the sharing of the information placed the public officer in reasonable fear of physical injury or harm to their property," Fleischaker and Abate said. "Citizens and journalists simply will not know whether they can talk about, or report on, public officials, employees, or controversies that happen to turn on the myriad categories of information protected by the law."

Morgan Watkins is The Courier Journal'schief political reporter. Contact her atmwatkins@courierjournal.com. Follow her on Twitter: @morganwatkins26.

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Lawmaker is back again with plan to shield records on Kentucky public officers - Courier Journal

After Donald Trumps second impeachment trial ended in acquittal, Senate Minority Leader Mitch McConnell (R-Kentucky) suggested that the former president could still be held civilly or criminally liable for his role in the Capitol riot that happened a year ago last Thursday. But as three lawsuits that a federal judge considered this week show, those options require proving that Trump deliberately provoked the violence that day, which is a tall order.

The Trump supporters who broke into the Capitol, interrupting the congressional tally of the presidential election results, came to Washington, D.C., at his behest. They were motivated by Trumps fantasy of a stolen election, which he had been promoting for months and reiterated in a fiery pre-riot speech at a rally a mile and a half from the Capitol.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard today, Trump said. While he did not advocate violence, it was foreseeable that at least some of his supporters would interpret his exhortation to fight like hell in defense of a supposedly imperiled democracy as a justification for the use of force.

Still, there is a big difference between reckless rhetoric, which is protected by the First Amendment, and the criminal conspiracy described in lawsuits filed by Rep. Eric Swalwell (D-California), other House Democrats and two Capitol Police officers. All three complaints allege that Trump violated the Ku Klux Klan Act of 1871 by conspiring to use threats, force and intimidation to stop government officials from carrying out their duties.

To prove that claim, the plaintiffs must do more than show that Trump ginned up his supporters outrage with false election fraud claims, or even that he did so in circumstances where he should have known violence was likely. They have to show that the Capitol riot was the culmination of a plan to violently disrupt the ratification of Joe Bidens victory, a scheme in which Trump himself intentionally participated.

Capitol Police officers James Blassingame and Sidney Hemby also claim that Trump violated a provision of the D.C. Code that makes it a criminal offense to willfully incite or urge other persons to engage in a riot. In addition to the requirement that the offense be committed willfully, prosecution for incitement is constrained by the First Amendment.

Even advocacy of illegal behavior, the Supreme Court ruled in the 1969 case Brandenburg v. Ohio, is constitutionally protected unless it is not only likely to incite imminent lawless action but also directed at doing so. Another exception to the First Amendment, for true threats, involves statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.

In a brief supporting Swalwells lawsuit, three law professors, joined by legendary First Amendment attorney Floyd Abrams, say these exceptions likely apply here. But whether that is so hinges on what we surmise Trump was thinking when he gave his speech.

Trump explicitly urged Mike Pence, for instance, to reject electoral votes for Biden, a power the vice president did not actually have. But Trump did not threaten Pence with an act of unlawful violence, and inferring such a threat requires speculation about what Trump meant to communicate in light of what his supporters did afterward.

It is likewise not at all obvious that Trump wanted to cause a riot, an outcome that failed to accomplish his ostensible goal, led to his second impeachment and provoked harsh criticism from Republican legislators such as McConnell. If this was all part of a plan, it was a pretty stupid plan.

The urge to punish Trump for his reckless rhetoric is understandable but dangerous. If his opponents succeed, they may regret establishing a precedent that speakers who neither practice nor preach violence can be held legally liable for the conduct of listeners inspired by their words.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum.

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Proving Trump conspired to incite the Jan. 6 insurrection is a tall order - Chicago Sun-Times

Hours into a marathon oral argument on Jan. 10, Judge Amit Mehta of the U.S. District Court for the District of Columbia observed that if there is one thing this hearing has shown it's that this is not an easy case. For nearly five hours Judge Mehta heard arguments about whether former President Donald Trump, Rep. Mo Brooks, Rudy Giuliani and others could be held civilly liable for their role in the Jan. 6 Capitol insurrection. The main lawsuits, brought by Reps. Bennie Thompson and Eric Swalwell, allege violations of 42 U.S.C. 1985(1), a Reconstruction-era statute that created civil liability for conspiracies to prevent public officials from holding any office or discharging any duties.

Addressing issues common to the three lawsuits, Judge Mehta wrestled with formidable defenses raised by Trump and his co-defendants: chiefly that Trump and Books are immune from civil liability for actions taken as part of their official duties, and that the defendants statements leading up to the siege of the Capitol could not satisfy the elements of conspiracy, especially to the extent that the statements were protected speech under the First Amendment.

Immunity

Trump lawyer Jesse Binnall argued for an expansive, highly formalistic vision of presidential immunity, relying on the Supreme Courts ruling in Nixon v. Fitzgerald that presidents are entitled to absolute immunity from civil liability for actions while in office that fall within the outer perimeter of their official responsibility. The crux of Binnalls argument was that the court must entirely ignore the content of Trumps speech on Jan. 6his remarks at the Ellipse and on Twitter over the course of the dayand look only at the presidents conduct to analyze whether he was acting in his official capacity. Because Trump was addressing the American people, Binnall argued, he was acting within his official duties as president and must enjoy immunity, especially since the subject of his speech, electoral integrity, is a matter of immense public concern.

Judge Mehta was skeptical of this all-encompassing vision of the presidents official duties, which potentially would make the president immune from civil liability anytime he opens his mouth. Judge Mehta pushed Binnall on whether there is anything that a president could do or say while in officefor example, as part of a campaignthat would not be immune from liability under his expansive theory of presidential immunity. Binnall said that he could not name an example of anything the president could say that would not fall within his official duties under this theory, but that perhaps signing a lease on a campaign office would not fall within his responsibilities as president.

But if Binnall failed to give Judge Mehta a reasonable standard for the scope of presidential immunity, the plaintiffs struggled to offer one that would withhold immunity in this case while nevertheless being consistent with precedent. The plaintiffs argued that Trump should not enjoy immunity because fomenting an insurrection against Congress was clearly unconstitutional and thus outside his official duties. But as Judge Mehta noted, Fitzgerald held that presidential immunity did not depend on the legality of the presidents action. The plaintiffs were left to argue that Trumps conduct surrounding Jan. 6 was so outrageous that it was clearly beyond the scope of his presidential responsibilities. But where exactly to draw that line remained unclear.

The question of the scope of official duties was also at the center of Brooks claim that he should be immune from liability under the Westfall Act, which requires the government to act as the defendant when federal employees are sued for tort liability for official actions. The Department of Justice joined the plaintiffs in arguing that Brookswho spoke before Trump on Jan. 6 and declared that Todays the day American patriots start taking down names and kicking asswas campaigning and therefore acting outside the scope of his official duties; as a result, Brooks should not be immune from civil liability. But Brooks, who argued on his own behalf, emphasized that his motivation in speaking at the Jan. 6 rally was not simply to support Republican candidates in future elections, but also to convince his fellow congresspeople to vote against the certification of the electoral college votes.

First Amendment

The other major hurdle for the plaintiffs is the First Amendment, which generally protects the sort of political speech that Trump, Brooks and the other rally speakers engaged in (and to that extent cannot serve as the predicate for the plaintiffs conspiracy charges). The plaintiffs emphasized that the defendants could be held liable under even the highly speech-protective standard of Brandenburg v. Ohio, which permits liability for advocacy of the use of force or of law except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

In a heated exchange, Binnall, Trumps lawyer, repeatedly pointed to several inflammatory statements that the Democratic plaintiffs had themselves previously made, arguing that if Trumps language was found to be incitement to violence here, but similar language used by others elsewhere was not, the court would be failing to apply the First Amendment equally to Democrats and Republicans. Judge Mehta sharply rebuked Binnall for engaging in whataboutism and for suggesting that he was judging Trump and his co-defendants speech more harshly because of their party.

Like the discussion of presidential immunity, the First Amendment portion of the argument was inconclusive. On the one hand, Trumps words did not explicitly call for violence and were on their face far less inflammatory than what the Supreme Court upheld in Brandenburg and in many cases since. On the other hand, the broader context of Trumps speech, from his months-long campaign to discredit the election to his failure to act after the attack on the Capitol began, suggests, as Mehta noted, that Trumps speech went beyond ordinary political rhetoric, even if it was not the sort of speech that typically qualifies as conspiracy to commit violence.

Ultimately, and despite hours of questioning, Judge Mehta did not tip his hand as to how he will rule on the many complex legal issues that the lawsuits raise. But given the high political and legal stakes, its unlikely that Judge Mehtas decision will be the last word. The parties will almost certainly appeal any outcome to the U.S. Court of Appeals for the D.C. Circuit, and this case may well end up before the Supreme Court, especially on the central issue of presidential immunity.

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After Oral Argument, the Future of Thompson v. Trump Remains Unclear - Lawfare

Last week, Jackson Mayor Scott Conger opened a minor can of worms when he shared a Christmas card quality photo of himself and his family in Downtown Jackson.

He opened the post by asking how we can honor the birth of Christ and then posted James 1:19-20 My dear brothers and sisters, take note of this: Everyone should be quick to listen, slow to speak and slow to become angry, because human anger does not produce the righteousness that God desires.

He then wished everyone reading a Merry Christmas.

By the time Christmas was over, there were more than 400 comments on the post with many of them wishing Merry Christmas back to the mayor and some even acknowledging their appreciation that he would mention Jesus Christs birth in his holiday message, something that many government officials opt not to do for varying reasons.

But among the more than 400 comments were a few that accused him of violating the First Amendment, specifically the part about freedom of religion.

Conger actually replied to a couple of them defending his statement with another part of the First Amendment, freedom of speech.

Now Im all for constructively criticizing Jacksons mayor as much as the next person when its warranted, but I dont think this is one of those times.

A lot of people seem to misunderstand the freedom of religion part of the First Amendment.

They seem to expect that when a person is elected to office or hired for a job within the government that theyre expected to leave their religion outside City Hall or the Courthouse or the White House or wherever theyre serving.

But thats not the case.

When the nations founding fathers wrote the Constitution and the Bill of Rights, they were trying to make a nation that was the exact opposite of the nation they were breaking free from in England.

And that country imposed a national religion and expected all citizens to follow that religion if they wanted to be a part of that country or its empire.

So freedom of religion keeps the United State of Americas federal government and every state and local government within its borders from forcing a certain religion or any religion for that matter on its citizens.

It doesnt keep religion out of government.

It doesnt mean that a person who claims to be a Christian and runs for mayor is to refrain from praying or going to church or reading the Bible or anything like that while he or she is in office for four years every time he or she is elected.

If were to use Conger in this example, he just cant make any executive orders or push the City Council to pass any resolutions forcing or prohibiting one particular religion on Jacksons citizens.

I can tell you that one of Congers early executive orders during the pandemic had a line that was difficult to decipher regarding churches meeting, and I had conversations with city officials on a specific Friday in the spring of 2020 letting them know we at The Sun were prepared to do appropriate reporting that weekend and the following week if the executive order did restrict gatherings at church and law enforcement did enforce it before I was assured that the order was not prohibiting religious gatherings.

Faith may play a role in decisions he makes. At the state level, Gov. Bill Lee isnt shy about how his Christianity influences him to make some of the decisions he makes. And of course that brings out similar accusations against Lee that Congers Merry Christmas post did.

Of course a Merry Christmas wish from a city mayor and a policy declaration by a state governor are two different things with different ramifications.

But the checks and balances system of our government is in place for when that gray area of religion in government tends to get too dark on the side of religion if a policy affects a person or group of people too much.

But checks and balances do not affect whether or not someone can say Merry Christmas. And no ones First Amendment rights were violated last week with Congers post.

Save that argument for when it matters.

Brandon Shields is the editor of The Jackson Sun. Reach him at bjshields@jacksonsun.com or at 731-425-9751. Follow him on Twitter @JSEditorBrandon or on Instagram at editorbrandon.

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First Amendment is freedom of religion, not from it | Opinion - The Jackson Sun

Omicron is still raging across the country, but this holiday season it was houses of worship, not the state, that decided whether to gather or move celebrations online.

Governors and mayors are still issuing restrictions in the name of safeguarding the public, like requiring vaccine passports. But they are not shuttering houses of worship the way they did early in the pandemic.

That may be because last year, the U.S. Supreme Court erected a firewall around religious liberty. And that firewall appears to be holding.

In Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, the court schooled the executive branch: (T)he Constitution cannot be put away and forgotten.

The high court overturned restrictions in California, Nevada and New York that regulated worship more harshly than economic activity. For instance, Nevada capped religious services at 50 people, while casinos could operate at 50% capacity. California even encroached on in-home worship, prohibiting more than three families from worshipping in a persons home or backyard.

Many people reflexively side with public health, for good reason. The coronavirus has yet to relinquish its grasp on society. But we cannot overlook the degree to which worship was relegat(ed) to third-class citizenship, as charged by the South Bay United Pentecostal Church, which twice reached the Supreme Court in challenging Californias orders.

In early 2020, South Bay simply wanted to open. California said no one could safely worship, even in the most cavernous cathedral. In May 2020, California allowed 100 worshipers. South Bay wanted to serve more. The church pointed out that California permitted factories and restaurants to reopen with safeguards; why couldnt the church?

That same month, the Supreme Court narrowly sustained Californias 100-person cap on worship gatherings, citing a century-old case holding that (o)ur Constitution principally entrusts (t)he safety and the health of the people to the politically accountable officials of the States.

But by February 2021, with vaccines becoming available, the court lost patience. Lacking sufficient justification, it struck the cap. Deference, though broad, has its limits, Chief Justice John Roberts noted.

Many ascribe the Supreme Courts intolerance of worship restrictions in 2021 to the addition of Justice Amy Coney Barrett, but the justices were simply applying precedent.

Singl(ing) out houses of worship for especially harsh treatment draws strict scrutiny, the Supreme Court held in 1993. This means that the government must show a compelling interest and no less restrictive means to achieving exceedingly important ends. Yet these orders read like edicts, Justice Neil Gorsuch would later say, because almost no explanation was given.

Californias orders are a prime example. In press conferences about the states 100-person cap, Gov. Gavin Newsom cited stock CDC guidance about the need to contain the contagion given spiraling case numbers. When asked by reporters why he was applying specific and different caps on places of worship and not schools, Newsom said, Perfects not on the menu.

He did not explain what factors guided Californias categories or why people mixing from far and wide in an enclosed space was a problem in church, but not in factories. The Constitution and the First Amendment were nowhere mentioned.

Two Californians sued over the restrictions on in-home worship. They challenged why they could watch John Legend sing outdoors ... (but not) host their faith community in their backyard.

True, worship gatherings had acted as super-spreaders early on. But so had factories, meatpacking plants and nursing homes. According to California, factories were safe because entry could be staggered. But the litigants offered to stagger the congregants entry and implement requirements for social distancing and masks.

Calvary Chapel in Nevada sued Gov. Steve Sisolak twice, asking to host worship services on the same terms as casinos at 50% capacity, not just 50 people.

Gorsuch skewered the disparity: (T)here is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

Later, the federal courts struck Nevadas scheme as discriminatory, violating the First Amendment.

New York also violated a cardinal First Amendment rule. It created cluster zones, with the tightest restrictions in the center and looser ones moving outward. On CNN, then-Gov. Andrew Cuomo blamed the ultra-Orthodox community for creating clusters. Catholic schools happen(ed) to be in the zone, too.

In red zones, houses of worship could accommodate 10 or fewer people, yet essential businesses like warehouses faced no caps. In yellow zones, places of worship were capped at 50% capacity; restaurants in yellow zones at that time had no cap on the total number seated.

Agudath synagogues and Brooklyns Roman Catholic Diocese both sued Cuomo, charging that he was targeting religion.

During litigation, the governors experts could cite no evidence of spread from the Orthodox community and admitted that the Brooklyn diocese was in fact taking the necessary precautions, just as essential businesses do.

The Supreme Court struck New Yorks policy, finding that it discriminated against people of faith.

Adding insult to injury, all three states permitted places of worship to reopen only after services deemed essential, like liquor stores and bike shops.

These ill-constructed orders were expensive. All three states paid hundreds of thousands of dollars in attorneys fees. Thankfully, during this holiday season, governments have not retread these orders.

If omicron or another variant forces more restrictions, governors and mayors would do well to construct coherent policies and transparently explain them from the beginning. Asking people to forego worship, an important source of support during crisis, should only happen when governments articulate the criteria for restricting core liberties in such a way that all of us can understand the need.

Robin Fretwell Wilson holds the Mildred Van Voorhis Jones Chair in Law at the University of Illinois College of Law and is a Public Voices fellow with The OpEd Project.

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COVID and churches: Can the government force churches to close? - Deseret News

(Red Oak) -- Resident's hopes of making Montgomery County a second amendment sanctuary will have to wait.

Meeting in regular session Tuesday morning, the Montgomery County Board of Supervisors discussed the potential of making Montgomery County a second amendment sanctuary. The discussion comes after county resident Jerald Palmquist introduced a resolution passed by Page County in October to declare their county a second amendment sanctuary. The board heard from those in favor and against the idea during the public comment period, including resident Glenn Mason, who says he's against the idea of any "sanctuary."

"My thing has nothing to do with the second amendment, mine is only that I do not think that local (governments) should pick and choose which laws they're going to obey, and which ones they're not going to obey," Mason said. "You know if you don't like a law and say it infringes your rights, take it to court."

However, resident Michael Luna says he feels the second amendment can protect the others under attack, including the first amendment.

"It's not of matter of if, it's a matter of when because of what they're doing to the first amendment, they're going to do it to the second amendment, they're going to come for your guns," Luna said. "I'm not necessarily a gun nut, but I believe in the right to keep and bear arms. It's up to the local and state governments to stand up to government overreach by the federal government. It has to start here, it has to start in this room, and start in this town."

Currently, at least 28 other counties in Iowa have signed on to the ordinance, including Page, Mills, Adams, Taylor, Ringgold, and Union counties in KMAland.

Montgomery County Attorney Drew Swanson also advised the board that, as of right now, the sanctuary resolution appears to carry little weight if challenged.

"It hasn't been challenged at the federal level at all yet from what I can see, so there's really no precedent to go by," Swanson said. "However, what I have found is that the legal community is likely seeing this as not really enforceable if push should come to shove. So you can do it, but it's questionable how much weight it would carry if it were challenged at some level."

Montgomery County Sheriff Jon Spunaugle and several board members felt more research was needed to determine whether the resolution was even necessary.

Thus, the Board of Supervisors took no formal action on the topic Tuesday and will bring the discussion of making the county a second amendment sanctuary back to their agenda on their January 11th meeting at 8:30 a.m.

At KMA, we attempt to be accurate in our reporting. If you see a typo or mistake in a story, please contact us by emailing kmaradio@kmaland.com.

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Montgomery County holds off on 'second amendment sanctuary' resolution - KMAland

Our country has had enough. We will not take it anymore, and thats what this is all about. And we fight, we fight like hell.

Former President Donald Trumps speech on January 6 may have set off a violent siege of the U.S. Capitol, but it also framed the mission.

In 2021, the Southern Poverty Law Center entered its fifth decade standing up for the powerless and exploited, focusing on impact legislation in Childrens Rights, Economic Justice, Immigrant Justice, LGBTQ Rights, Voting Rights and Criminal Justice Reform. | SPLC's Top Cases of 2021

While more than a dozen U.S. states, including Florida and Georgia, implement laws that make it harder for citizens to vote we fight.

While migrants continue to be turned away at the Southern border we fight.

As verdicts continue to render signs of systemic racism we fight.

Here are some of the most memorable events in the fight for justice that occurred in 2021.

A mob breached the halls of Congress on January 6 to prevent U.S. lawmakers from certifying the Electoral College vote.

Five people died. About 140 police officers were assaulted during 187 chaotic minutes.

The siege of the U.S. Capitol in Washington, D.C., pointed to a troubling trend: While the Southern Poverty Law Center tracked a variety of extremists and far-right and anti-government groups, such as the Proud Boys and Oath Keepers, a large number of those arrested in the aftermath were not affiliated with a specific hate or anti-government group.

Some of the accused insurrectionists include individuals aligned with QAnon, an umbrella term for a spiderweb of right-wing conspiracy theories.

While a Select Committee of Congress attempts to make sense of the mayhem that transpired, federal prosecutors have charged almost 700 people with violent crimes that range from conspiracy to destruction of property.

On Jan. 14, Kelvin Silva one of many Black men held at a remote immigrant prison in Georgia faced deportation because of an archaic and racially inequitable law known as the Guyer Rule that prevented him from becoming a U.S. citizen as a child, even though his father was a naturalized U.S. citizen.

Were it not for the Guyer Rule, Silva who was born in the Dominican Republic but grew up in the United States would have automatically gained citizenship when he was just 11-years-old.

The SPLC and its co-counsel continue to represent Silva in a federal court challenge that claims the Guyer Rule which since 1940 has prevented U.S.-citizen fathers, but not U.S.-citizen mothers, from passing their citizenship status to foreign-born, nonmarital children is unconstitutional because it discriminates based on gender and race.

The SPLC, American Civil Liberties Union (ACLU), ACLU of Georgia, NAACP Legal Defense and Educational Fund (LDF), and law firms WilmerHale and Davis Wright Tremaine filed a federal lawsuit against Georgias sweeping new law that makes it much harder for all Georgians to vote, particularly voters of color, new citizens and religious communities.

The lawsuit challenges multiple provisions in Georgia law S.B. 202 signed by Gov. Brian Kemp following record turnout of voters, particularly Black voters, for the 2020 presidential vote and 2021 runoff elections.

A federal court in December rejected three motions filed by the State of Georgia, county defendants and intervenor defendants which include the Republican National Committee and other campaign arms of the Republican Party to dismiss the case.

The litigation is scheduled to proceed.

More than three decades after first introduced, a U.S. House committee voted and approved legislation to create a commission to study slavery reparations for Black citizens in the U.S.

The legislation would establish a 13-person commission to study the effects of slavery and racial discrimination throughout U.S. history and recommend potential remedies, including compensation. It awaits movement in the Senate.

Reparation efforts have made progress at the local level, including in Evanston, Illinois, which in March became the first U.S. city to institute a reparations program.

A jury on April 20 found the former Minneapolis Police officer, who knelt on George Floyds neck for more than nine minutes, guilty on three counts of murder and manslaughter.

The death of Floyd, a Black man, at the hand of a white police officer in May 2020 sparked a national racial reckoning to fundamentally transform policing and end police violence against Black people.

Derek Chauvin, 45, was sentenced to serve a prison term of 22 years, six months. A federal civil rights trial for three other Minneapolis police officers Thomas Lane, J. Alexander Kueng and Tou Thao charged in connection with Floyds death is expected to begin in January 2022. Chauvin pleaded guilty on Dec. 15 to the federal charge, possibly extending his imprisonment by 2 years.

The George Floyd Justice in Policing Act, which bans chokeholds and ends qualified immunity the legal protection that limits victims ability to sue police officers for misconduct awaits further action in the Senate after gaining approval in the House in March.

People continue to lay flowers on April 6, 2021, at the George Floyd Mural in Houstons Third Ward, where Floyd grew up. (Credit: Sipa USA/Alamy Live News)

About 15 months after Ahmaud Arbery, a Black man, was chased and gunned down while jogging through a neighborhood in south Georgia, state lawmakers repealed a Civil War-era law used to defend the white men charged with his murder.

The law allowed any citizen to arrest another if a crime was committed within his immediate knowledge. It was replaced by a new law, with specific language for citizen detainment under specific circumstances and prohibits the use of deadly force unless in self-defense.

Gregory McMichael; his son, Travis; and their neighbor William Roddie Bryan were convicted in November of killing Arbery, who was not armed. A graphic video showing how the three men followed Arbery and caused his death was made public following prosecutors initial dismissal of the case under the citizens arrest law.

One former prosecutor, Jackie Johnson, was indicted in September on charges she violated her oath of public office.

Small oil on canvas portraits, like this one of Ahmaud Arbery in Detroit, are part of the Healing Wall installation created by artist Carol Morisseau for the Soul of Black Folks exhibition, curated by the artist Donna Jacksons partnership with Scarab Club in Detroit. The photograph of the oil painting was taken on Feb. 4, 2021. (Credit: USATNSYNDICATION)

Following a rise in violence and discrimination against people of Asian and Pacific Islander descent amid the coronavirus pandemic, Congress on May 20 passed a bill that creates grants for state and local governments to combat hate crimes and supports a national incident-based reporting system. It also provides for additional penalties for hate-crime offenses.

The bill incorporated portions of the Khalid Jabara and Heather Heyer National Opposition to Hate, Assault, and Threats to Equality (NO HATE) Act, which was previously introduced in response to high-profile attacks on the LGBTQ, Jewish, Muslim and other communities.

The bill was named in honor of Khalid Jabara, who was killed in 2016 after months of racially charged animus directed at him and his Lebanese-American family; and Heather Heyer, who was killed in 2017 while protesting the Unite the Right white supremacist gathering in Virginia.

In 2021, the SPLC identified more than 300 public schools named for Gen. Robert E. Lee and other Confederate leaders the majority in the South. But that is changing.

More than a year after Montgomery, Alabama, officials moved to rename three public schools linked to members of the Confederacy, a committee made up of community leaders and students took on the daunting effort of narrowing the chosen favorites from nearly 2,000 public submissions. That may be the simplest task.

The Alabama Memorial Preservation Act of 2017 forbids public schools 20 years or older from being renamed without a waiver from the attorney general, with violations incurring a $25,000 fine.

The three schools in Montgomery were named for Lee, Confederate president Jefferson Davis and Sidney Lanier, a Confederate soldier.

Upstate in Huntsville, city school officials have sought guidance from the state for renaming a high school named for Lee that was relocated in 2012.

Similar efforts have taken place across Georgia, Florida and Louisiana.

In November, however, Georgias public university system ignored the recommendations by an advisory group convened by the Board of Regents to rename 75 buildings and colleges that bear the names of Confederate leaders, segregationists and proponents of slavery.

In a statement rejecting the proposal, the board said, The purpose of history is to instruct. History can teach us important lessons, lessons that if understood and applied make Georgia and its people stronger.

Like in Alabama, a 2019 law in Georgia outlaws the removal or defacing of monuments to the Confederacy.

Fair Elections Center and the SPLC filed a lawsuit to challenge Florida Senate Bill 90, an omnibus voting rights bill that, among other things, requires civic organizations engaged in voter registration activities to provide misleading information to voters that the organization might not submit their registration application on time and to direct voters to the online registration portal.

The complaint was filed on behalf of Harriet Tubman Freedom Fighters Corp., a nonprofit, nonpartisan organization that focuses its registration efforts on new voters, particularly youth, communities of color and returning citizens.

The complaint challenges the new laws misleading disclaimer and disclosure requirements and alleges that the new law is void for vagueness under the due process clause of the 14th Amendment, compels speech in violation of the First Amendment, and prevents organizations from exercising their First Amendment expressive and associational rights.

Spurred by advocates and the Congressional Black Caucus, on June 15, the Senate unanimously passed the Juneteenth National Independence Day Act, establishing Juneteenth (June 19) as a federal holiday.

It was the first national holiday established since Martin Luther Kings Birthday in 1983.

Juneteenth commemorates the end of slavery in the United States. Its name stems from June 19, 1865, when more than two years after President Lincoln signed the Emancipation Proclamation enslaved Americans in Galveston, Texas, finally received word that they were free from bondage.

Amy Donofrio a 13-year, nationally recognized educator was banned from her Jacksonville, Florida, classroom in March after declining to remove a Black Lives Matter flag above her classroom door at Riverside High School, which until recently was named Robert E. Lee High School in honor of the Confederate States Army leader who was an enslaver and white supremacist.

In April, the SPLC and Scott Wagner and Associates, P.A. filed a lawsuit against the Duval County Public Schools seeking to reinstate Donofrio to her teaching position and requested a court order banning school policies that prevent educators from exercising their First Amendment rights. The district settled in August, but Donofrios contract was not renewed.

Teacher Amy Donofrio stands outside Robert E. Lee High School in Jacksonville, Florida. (Credit: Evac Movement)

A 12-ton statue of Confederate States Army leader Robert E. Lee that was erected in Richmond, Virginia, in 1890 was removed to the celebratory cheers of activists.

Virginia Gov. Ralph Northam had ordered the statues removal a year earlier amid the nationwide protest movement, but litigation halted plans until a state Supreme Court ruling allowed its removal.

The statue, listed since 2007 in the National Register of Historic Places, was one of the largest Confederate monuments remaining in the United States. Symbols of the Confederacy have been identified in 36 states and the District of Columbia as well as Puerto Rico. See our map.

The John R. Lewis Voting Rights Advancement Act passed by the U.S. House of Representatives on Aug. 24 would have updated the Voting Rights Act (VRA) to strengthen sections of the 1965 law that were gutted by the Supreme Courts 2013 Shelby County v. Holder decision that required the U.S. Justice Department preclearance before some states could change voting laws.

This year, 19 states have passed 33 laws making it harder to vote.

On Nov. 3, U.S. Senate Republicans voted to block debate on the bill and prevent it from receiving a floor vote.

Kyle Rittenhouse, armed with an AR-style automatic rifle, said he went from his home in Antioch, Illinois, to Kenosha, Wisconsin, to protect property during a night of protesting there in the summer of 2020 over the shooting of a Black man, Jacob Blake, by a white police officer. But Rittenhouse, then 17, said he came under attack, and fearing for his life, shot three men.

Rittenhouse, now 18, was charged with homicide, attempted homicide and reckless endangerment for killing Joseph Rosenbaum, 36, and Anthony Huber, 26, and wounding Gaige Grosskreutz, 27. Rittenhouse, like his victims, is white.

After nearly 3 1/2 days of deliberations, a jury on Nov. 19 cleared Rittenhouse of all charges.

The acquittal of Kyle Rittenhouse will add fuel to the fire of armed radicalization of America, said SPLC president and CEO Margaret Huang. That a while male youth can travel across state lines, armed with an assault rifle, and engage in armed confrontation resulting in multiple deaths without facing criminal accountability, is the all-too-familiar outcome in a country where systemic racism continues to rot the system.

People react to the verdict in the murder trial of Kyle Rittenhouse, outside the Kenosha County Courthouse in Kenosha, Wisconsin, on Nov. 19, 2021. (Credit: Reuters/Brendan McDermid)

A jury in Virginia found organizers of Unite the Right, a 2017 far-right rally in Charlottesville, liable for damages and ordered them to pay more than $25 million to victims.

The nonprofit organization Integrity First for America (IFA) brought the lawsuit against 24 individuals and organizations, who unapologetically acknowledged their racist and antisemitic beliefs but denied a conspiracy. A few cast the trial as a referendum on First Amendment rights.

Unite the Right, a planned protest over the removal of a statue of Robert E. Lee that was to feature one of the largest gatherings of neo-Nazis, white supremacists and alt-right adherents in decades, never got off the ground.

Among those held accountable was James Alex Fields, a neo-Nazi, who was found guilty in 2018 of murdering 32-year-old paralegal Heather Heyer by driving his car into a crowd of counterprotesters following the rally. Serving a sentence of 419 years plus life, he was ordered to pay $12 million in damages.

Soon after taking office in January, President Joe Biden ended the Trump-era policy known as the Migrant Protection Protocols (MPP) in an attempt to take a more humane approach to immigration. In August, a federal judge ruled the administrations efforts did not follow proper procedure and ordered the policy's reinstatement, forcing asylum seekers to wait in Mexico for U.S. immigration hearings.

The SPLC and immigration advocates filed an amended complaint in a class action lawsuit challenging the continuing effects of the Remain in Mexico policy, which restarted on Dec. 6 at one border location and will eventually be adopted at seven entry points, including San Diego and the Texas cities of Laredo, El Paso and Brownsville.

Photo at top: Cutouts of activists and protestors combined along with the victims of injustice they supported throughout 2021. (Credit: SPLC)

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The Year in Review: Events that shaped 2021 - Southern Poverty Law Center

On Dec. 15, 1791, the Second Congress of the United States officially adopted the first 10 amendments to the Constitution the Bill of Rights which protect our core freedoms. Beginning in 1789 when they were introduced by U.S. Rep. James Madison, the amendments were vigorously debated and eventually ratified by 11 of the 15 states.

The Bill of Rights is a tool to rein in government power. As its preamble states, its purpose is to prevent misconstruction or abuse of (the governments) powers and to best ensure the beneficent ends of its institution. Today, we often think of the Bill of Rights as a list of things the government allows us to do. In fact, it is a list of things the government cannot do. And paramount among the many things the government has no business interfering with are the five freedoms protected by the First Amendment.

Those freedoms religion, speech, press, assembly and petition were bundled together very purposefully. Together, they represent the means by which people have ideas, share ideas and transform those ideas into reality. The freedom of (and from) what is referred to in the text of the amendment as religion was understood by 18th-century statesmen to encompass the freedom of unimpeded belief or thought. Madison called that liberty of conscience in a prior draft. Free thoughts, expressed with free speech, disseminated by a free press, debated and developed by free assemblies of other free thinkers, may eventually be pressured into legislative action through the process of petition.

That process of changing an idea into an action is what enables our society to evolve.

The five freedoms of the First Amendment also empower our individualism and allow the fringes of society to flourish, for good or ill. No ones idea is too far-fetched to be shared, no speech too horrible to utter (unless it presents an imminent threat to the physical safety of others). No media source can be shut down for publishing controversial opinions or scandalous stories, or for speaking truth to power, or for holding the government accountable. No lawful peaceful gatherings can be forcibly disbanded, whether by vigilantes or the authorities; and no opinion can be declared an unlawful cause to petition the government to pay attention to, or to march in support of no matter how distasteful.

The First Amendment is complicated and, at times, frustrating in its inclusivity. The spectrum of its freedoms empowers our individualism on the one hand and enables our collective voice on the other. It facilitates our ability to change the structure of our government, and to decide who gets a voice in that government (and how much of one), but it also can be used to prevent change from happening, to bulwark position and privilege and to support the status quo. It is the power and the inertia on both sides of the metronome.

Americans, no matter how polarized we may be, share a common purpose or goal, whether we are conscious of it or not, from the Preamble of the Constitution: to form a more perfect Union.

The five freedoms in the First Amendment are what empower us, we the people, to create that more perfect union.

On the 230th anniversary of the ratification of the Bill of Rights and the official adoption of the First Amendment, the question is, will we ever agree on what a more perfect union might look like?

The First Amendment protects our right to live our freedoms even as we debate the question.

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Commentary: First Amendment protects our right to live our freedoms - Press Herald

Guest Post by Samuel F. Ernst, Professor of Law, Golden Gate University School of Law.

Can you register a famous persons name as your trademark without their consent? The Lanham Act seems to say no, and the U.S. Patent and Trademark Office interprets this to mean no, never, no matter what. 15 U.S.C. 1052(c) provides, in pertinent part, that the PTO must deny federal registration to a trademark if it [c]onsists of or comprises a name, portrait, or signature identifying a particular individual except by his written consent. Unlike registration denials under Section 1052(a), the PTO denies registration without any inquiry into whether the mark suggests a false connection between the mark and the famous person. Nor does the PTO inquire into whether the famous person also sells the goods or services in question, as it does with private individuals under Section 1052(c). Rather, with respect to celebrities and world famous political figures, registration is denied based solely on the determinations that (1) the public would recognize and understand the mark as identifying a particular living individual; and (2) the record does not contain the famous persons consent to register the mark.[1] Under this provision, the PTO routinely denies registration to marks that appear calculated to capitalize on the famous persons name to sell products. For example, the PTO denied registration under Section 1052(c) to ROYAL KATE as applied to watches, cufflinks, jewelry, and other luxury products based solely on the determination that ROYAL KATE identifies Kate Middleton whose identity is renowned.[2] Id. And the PTO denied registration to OBAMA PAJAMA in connection with pajamas based on the examining attorneys excellent job marshalling a variety of press excerpts to demonstrate the obvious namely, that President Barack Obama is extremely well known.[3]

But the PTO also denies registration to marks under this provision even if they constitute political commentary, parody, or other public discourse at the heart of the First Amendment. For example, in 2020 the PTO denied registration to the mark TRUMP TOO SMALL in connection with T-shirts, even though the applicant argued that the mark was political commentary about presidential candidate and president Donald Trump that the relevant consumer in the United States would not understand to be sponsored by, endorsed by, or affiliated with Donald Trump.[4] In particular, the mark is political commentary about [Trumps] refutation at the March 3, 2016 Republican debate of presidential candidate Marco Rubios insinuation that Donald Trump has a small penis; and is also political commentary about the smallness of Donald Trumps overall approach to governing as President of the United States.[5] The applicant appealed the PTABs denial to the Court of Appeals for the Federal Circuit, which is now deciding whether Section 1052(c) is unconstitutional in violation of the First Amendment,[6] as that court and the Supreme Court have already decided with respect to the provisions in the Lanham Act barring registration of scandalous, immoral, or disparaging marks.[7]

Unlike the bars on registration at issue in Tam and Brunetti, the PTOs ban on registration under Section 1052(c) does not discriminate against speech based on the viewpoint expressed. Rather, the PTO bars registration whether the mark praises, criticizes, ridicules, parodies, or is neutral toward the famous person. Nonetheless, the bar is a content-based restriction because its reach is defined simply by the topic (subject matter) of the covered speech[8] here, the topic being the famous person in question. And even if viewed as a regulation of purely commercial speech and therefore not subject to strict scrutiny the restriction would at least have to pass muster under the Supreme Courts test in Central Hudson Gas & Electric Corp. v. Public Service Commission, which asks, in pertinent part, whether the regulation burdening speech directly advances a substantial government interest, and whether the regulation is not more extensive than necessary to serve the interest.[9] Section 1052(c), at least as broadly interpreted by the PTO, fails this test and is, therefore, unconstitutional.

The PTOs asserted justification for this total ban on registration is to protect the intellectual property right of privacy and publicity that a living person has in his/her identity.[10] Putting aside whether the PTO has a legitimate interest under the Lanham Act in protecting intellectual property rights that are creatures of state law, these justifications plainly fail on their merits.

With respect to the right of privacy, the government does not have a legitimate interest in protecting public figures, such as former President Trump, from speech that criticizes, ridicules, or even praises them. Rather, the First Amendment recognizes a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.[11]

And even if the government has a legitimate interest in guarding the state right of publicity, the Lanham Acts absolute bar on registering the name of a famous individual absent written consent is far more extensive than necessary to serve that interest. No state recognizes such a sweeping right of publicity that it is subject to zero countervailing First Amendment protections. As Jennifer Rothman observes, [a]t least five balancing approaches have been applied to evaluate First Amendment defenses in right of publicity cases.[12]:

Accordingly, the PTOs absolute ban on the registration of marks such as TRUMP TOO SMALL is far more extensive than necessary to protect the right of publicity, which would not prevent the use of TRUMP TOO SMALL under any states right of publicity regime.

These various free speech defenses to the right of publicity have been criticized by scholars for providing an inadequate, misleading patchwork of First Amendment protections.[23] But the PTOs application of Section 1052(c) is even worse: the PTO takes no countervailing interests into account before denying registration to a mark. The PTO fails to consider: whether registration of the mark would likely cause consumer confusion; whether it would cause dilution of the public figures brand; whether the mark suggests a false connection with the person (as separately provided by other provisions); whether there is unjust enrichment or any other type of unfair competition; whether the use of the famous persons name constitutes news, political commentary, parody, or entertainment speech at the heart of the First Amendment; and indeed without considering any First Amendment defense or legitimate Lanham Act policy whatsoever.

Hence, the PTOs interpretation of Section1052(c) is a First Amendment-free zone. But what remedy should the Federal Circuit provide? Should the statute be construed so as to require source confusion, dilution, or a false connection with the celebrity before denying registration?[24] Such an interpretation is not plausible because there are separate provisions preventing registration under these circumstances, such that this interpretation would render Section 1052(c) duplicative of Sections 1052(a), (d), and (f).[25] Should the Federal Circuit remand with instructions that the PTO apply one of the First Amendment defenses to the right of publicity detailed above before declining to register a mark, even though those defenses are roundly criticized by scholars?; or perhaps one of the First Amendment defenses that are recommended by scholars?[26] Which one? Is the PTO capable of applying First Amendment balancing tests such as transformative use or fair use in routine registration decisions?; determinations that befuddle and confuse Article III federal courts? Is the PTAB the right body to make such determinations? Do we really want the PTO to be judging distinctions between political speech and purely commercial speech, or might that result in new speech discrimination issues? If the PTO cannot apply a First Amendment test in a reliable, predictable way, must the statute be invalidated because it is impermissibly vague with respect to what speech it burdens?[27]

Or have we gotten this whole question exactly backwards? Perhaps the prohibition on registering famous persons names serves in some way to protect political speech. After all, if the PTO registers a mark that is political commentary about a famous person, this gives the registrant certain nationwide rights allowing the registrant to burden other speakers from using the political speech in commerce to the extent it would result in likely confusion. Hence, in some circumstances registration of famous persons names could perhaps result in less political speech, not more. One thinks of a potential 2024 Marco Rubio presidential campaign that seeks to sell T-Shirts saying TRUMP TOO SMALL, but is burdened by the national registration of that mark by Mr. Elster. As Judge Reyna wrote in dissent in In re Tam, if the expressive content of the mark precludes regulation, on what authority may the government grant Mr. Tam the exclusive right to use this mark in commerce?[28] Perhaps the courts should analyze statutes such as this one in the flexible way Justice Breyer suggests in his partial dissent in Brunetti: by focusing on the interests the First Amendment protects and considering whether the harm to those interests is disproportionate in light of the relevant regulatory objectives.[29] But these are mere dissents, not the law. The government has not met its burden of advancing such a pro-speech rationale. If protecting political speech were the true government interest behind Section 1052(c), it is a wholly insufficient vehicle for protecting that interest. It is insufficient protection because it still allows the political figure himself to register the political speech including his name, thereby burdening others from using that speech in commerce. Moreover, the PTO can register all kinds of marks that constitute political speech so long as they do not contain the name of a famous person without his consent. The binding precedent of the Federal Circuit and the Supreme Court requires the conclusion that denying the benefits of national registration to marks constituting political speech under these circumstances constitutes an impermissible burden on free speech in violation of the First Amendment.

[1] In re Nieves & Nieves LLC, 113 USPQ2d 1629, 2015 WL 496132, *12 (TTAB 2015).

[2] Id. at *12-*14.

[3] In re Hoefflin, 97 USPQ2d 1176, 2010 WL 5191373, *3 (TTAB 2010).

[4] In re Elster, No. 20-2205, Doc. 43 (Corrected Joint Appendix) at 111 (Response to Office Action of Feb. 19, 2018) (Fed. Cir.) (available on Pacer).

[5] Id.

[6] See In re Elster, No 20-2205 (Fed. Cir.).

[7] See In re Tam, 808 F.3d 1321 (Fed. Cir. 2015) (en banc) (holding that 15 U.S.C. 1052(a) is unconstitutional with respect to the bar on disparaging marks), affd, Matal v. Tam, 137 Sup. Ct.1744 (2017); In re Brunetti, 877 F.3d 1330 (Fed. Cir. 2017) (holding that 15 U.S.C. 1052(a) is unconstitutional with respect to the bar on immoral and scandalous marks), affd, Iancu v. Brunetti, 139 Sup. Ct. 2294 (2019).

[8] In re Tam, 808 F.3d at 1334 (citing Reed v. Town of Gilbert, 135 S.Ct. 2218, 2230 (2015)).

[9] 447 U.S. 557, 566 (1980). See also Matal, 137 Sup. Ct. at 1764 & n. 17 (opinion of Alito, J.) ([W]e leave open the question whether Central Hudson provides the appropriate test for deciding free speech challenges to provisions of the Lanham Act because the disparagement clause cannot withstand even Central Hudson scrutiny); Brunetti, 139 Sup.Ct. at 2298 (The Court in Tam held that viewpoint discrimination is unconstitutional but could not agree on the overall framework for deciding the case); In re Tam, 808 F.3d at 1364-68 (Dyk, J., concurring in part and dissenting in part) (purely commercial speech can be regulated subject to the Central Hudson test).

[10] In re Hoefflin, 2010 WL 5191373, *1.

[11] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[12] Jennifer Rothman, The Right of Publicity 145 (Harvard U. Press 2018).

[13] C.B.C. Distribution & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818, 823 (8th Cir. 2007).

[14] Id. at 824.

[15] Doe v. TCI Cablevision, 110 S.W.3d 363, 374 (Mo. 2003) (quoting Mark S. Lee,Agents of Chaos: Judicial Confusion in Defining the Right of Publicity-Free Speech Interface, 23 Loy. L.A. Ent. L. Rev. 471, 500 (2003)).

[16] Id. at 374.

[17] Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 404 (2001) (internal citations and quotation marks omitted).

[18] Id. at 409-10.

[19] See, e.g., Davis v. Electronic Arts., 775 F.3d 1172 (9th Cir. 2015).

[20] Id.

[21] Restatement (Third) of Unfair Competition 47. Rothman refers to this as the relatedness test. Rothman, Right of Publicity 146.

[22] Rogers v. Grimaldi, 875 F.2d 994, 100405 (2d Cir. 1989).

[23] See, e.g., David Franklyn & Adam Kuhn, Owning Oneself in a World of Others: Towards a Paid-for First Amendment, 49 Wake Forest L. Rev. 977, 1011 (2014) (The right [of publicity] is growing unchecked, and attempts to balance it against the First Amendment have resulted in a patchwork of misleading potential defenses.); Rothman, The Right of Publicity at 145 (The uncertainty of what a speaker can do has itself chilled speech because content creators do not want to risk litigation or liability.); Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stan. L. Rev. 1161, 1162 (2006) ([T]he courts have developed no meaningful counterweight to this ever-expanding right [of publicity]. Instead, they have created a few ad hoc exceptions in cases where the sweeping logic of the right of publicity seems to lead to results they consider unfair.); Eugene Volokh, Freedom of Speech and the Right of Publicity, 40 Hous. L. Rev. 903, 930 (2003) ([T]here is good reason to think that the right of publicity is unconstitutional as to all noncommercial speech, and perhaps even as to commercial advertising as well.)

[24] See Brunetti, 139 Sup.Ct. at 2304 (Breyer, J., concurring in part and dissenting in part) (Our precedents warn us against interpreting statutes in ways that would likely render them unconstitutional).

[25] See In re Brunetti, 877 F.3d at 1355 (It is thus permissible to construe a statute in a manner that preserves its constitutionality only where the construction is reasonable.); Brunetti, 139 Sup. Ct. at 2302 & note * (declining to narrowly construe the bar on registering scandalous marks to avoid unconstitutionality).

[26] See, e.g., Franklin & Kuhn; Dogan & Lemley, supra note 23.

[27] See In re Tam, 808 F.3d at 1358 (OMalley, J., concurring) (opining that the disparagement provision of Section 1052(a) should be invalidated because it is impermissibly vague in violation of the Fifth Amendment).

[28] In re Tam, 808 F.3d at 1378 (Reyna, J., dissenting).

[29] Brunetti, 139 Sup.Ct. at 2306 (Breyer, J., concurring in part and dissenting in part).

Originally posted here:

Section 1052(c) of the Lanham Act: A First Amendment-Free Zone? - Patently-O