Monthly Archives: May 2020

Jack Greiner Published 9:25 a.m. ET May 27, 2020 | Updated 12:32 p.m. ET May 28, 2020

Jack Greiner, attorney for Graydon(Photo: Provided, Provided)

The Washington League for Increased Transparency and Ethics (Washlite), a public interest group in Washington state is suing Fox News under the Washington Consumer Protection Act for its alleged campaign of deception and omission regarding the danger of the international proliferation of the novel Coronavirus.

According to the complaint, Fox knowingly disseminated false, erroneous, and incomplete information . . . , [which] created an ongoing uncertainty amongst some members of the public as to the dangers of the virus and the rapidity with which the virus spreads.

Not surprisingly, Fox filed a motion to dismiss, arguing that the First Amendment prohibits the claim. The response from Washlite is interesting.

Rather than arguing that there is some particular exception here that would allow a court to find Fox liable despite the First Amendment, Washlite swings for the fences and contends that the First Amendment doesnt even apply to a cable television programmer/content provider . . . using a system owned and operated by a cable operator. It also contends that cable television does not stand on equal footing as print media or broadcast television.

That seems like a pretty strong and misguided contention. The Supreme Court has applied the First Amendment to video games, so it certainly has not confined freedom of speech to just traditional outlets.

To support its position, Washlite cited a Supreme Court case where three Justices wrote that cable programmers using a private cable system owned by another have no independent constitutional right to speak through the cable medium. Based on that limited ruling, Washlite contends a cable programmer has no First Amendment rights. That is, I think, a bit of an overstatement.

What the Justices were saying in that case was more limited. The ruling merely stands for the notion that [l]ike a free-lance writer seeking a paper in which to publish newspaper editorials, a programmer is protected in searching for an outlet for cable programming, but has no free-standing First Amendment right to have that programming transmitted. All this means is that a programmer cant assert the First Amendment to force someone to carry the programming. But thats a different issue than whether a cable programmer, who has found an outlet, can be punished for the programming. And thats the question in this case.

Its understandable that people may be frustrated with anyone who spreads misinformation about a deadly pandemic. But thats the thing about the First Amendment. It protects the right of a speaker even an ignorant and misinformed speaker to say their piece.

As an update, on May 27, after this column was written, the Washington Superior Court granted Foxs motion to dismiss, agreeing that Fox is protected by the First Amendment, and it bars this suit.

Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

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Strictly Legal: Is Fox News entitled to First Amendment protection? - The Cincinnati Enquirer

Facebook wont ever solve its content moderation problems to the satisfaction of all. Not because its incapable of doing so, but because free speech is the hottest of hot buttons.

People want Facebook to police itself and they dont want Facebook acting as a censor.

Its an awkward dynamic that was on display at Facebooks annual (virtual, of course) shareholders meeting on Wednesday.

During the Q&A portion of the meeting, one shareholder asked, Why do you allow hate speech on your platform? Seems like you should outlaw this. A few minutes later, another shareholder questioned why Facebook is acting as an arbiter of free speech. I dont think you need to be a watchdog censorship is not your job.

Thats the dilemma in a nutshell. Why do you take down so much content in some cases and why arent you taking down more? said Mark Zuckerberg. People across society do not agree on the right way to address this.

Zuckerberg said Facebook takes a principled stand for free speech as the default position, with policies in place to take down content that could lead to imminent violence or physical harm.

Were certainly not perfect at it and we make operational mistakes in terms of how we enforce things, Zuckerberg said. Its a constant evolution.

But not, apparently, when it comes to political speech. Facebook is sticking to its guns on allowing politicians to include false information in advertising on the platform.

A stockholder proposal calling for an independent report on the implications of exempting political advertising and posts from fact-checking was rejected. (So were calls for the distribution of equal voting rights for all shareholders and the appointment of an independent board chair. Shareholders push similar resolutions every year with no luck.)

We do not believe a private company like Facebook should be in the business of vetting what politicians say about each other or be the arbiter of truth when it comes to open democratic debate, said Nick Clegg, Facebooks head of global policy and communications, and a former deputy prime minister of the United Kingdom.

There are some limits. Politicians cant disseminate hate speech or spread deliberate misinformation that leads to voter suppression.

Its not a free-for-all, Clegg said. But, in general, people should be able to hear what politicians say to make up their own minds.

Its a stance that rubs some shareholders the wrong way. What Facebook considers a standard others see as a double standard.

Facebook, for example, took swift action on coronavirus-related misinformation, because its an issue that Zuckerberg personally prioritized. But other content, including hate speech, remains on the platform, said Rashad Robinson, president of the nonprofit Color of Change. Robinson was presenting a resolution calling for the board to oversee a report focused on civil and human rights across Facebook.

The mere presence of policies on the books does not itself lead to effective practices across an organization, Robinson said.

(His resolution was rejected by the board.)

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Facebook Keeps Touting The First Amendment To Justify Its Content Policies - AdExchanger

The presidents feud with Twitter once again brings into sharp focus the First Amendments role in a functioning democracy.

Most of us understand the core principles enshrined in the First Amendment. But beyond the granular details of which freedoms are protected, the First Amendment provides a framework of responsibility for self-rule.

Were free to express ourselves without interference from the government because debate over matters of public concern is ultimately what shapes government. There can be no self-determination without a free exchange of ideas, including criticism of the government when it fails to live within the guardrails established by our Constitution.

But the nexus between free speech and government constraint often seems misconstrued as a right to be heard. For example, President Donald Trump bristled at Twitter adding fact checks to two of his recent tweets. The president seems to want to tell his fellow Americans whatever he wants without anybody questioning the veracity of his statements. But thats not freedom of speech as defined by the First Amendment.

Claiming tech giants silence conservative voices, Trump tweeted early Wednesday, We will strongly regulate, or close them down, before we can ever allow this to happen. Later he tweeted without elaboration, Big Action to follow.

Setting aside for a moment that the president cant unilaterally regulate or close the companies, which would require action by Congress or the Federal Communications Commission, the president seems to have some misconceptions about how the First Amendment works.

The First Amendment protects us from state action to restrict expression. Thats it. Twitter is not a government agency. As a private company, its free to decide whether the tweets published on its platform conform to policies relating to user content. Theres no First Amendment right to use Twitter or have a Facebook page or have a letter to the editor published in this newspaper.

Social media companies, newspapers and private corporations have free speech rights of their own under the First Amendment. So, while the president or any American has the right to make false statements, private entities are under no obligation to publish them uncensored.

In fact, the current tension between the president and Twitter is a good example of the First Amendment in service to democracy. Trump seems to want to create a culture of blind loyalty to the presidency, free of detractors or criticism the very circumstance the Framers of the Constitution sought to avoid when they crafted the language of the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The Framers sought a vigorous debate around policy issues on the theory (articulated best by John Stuart Mill) that through debate, the truth will rise to the top to be seen by all. Thats exactly what we are getting in this exchange between Trump and Twitter.

Free speech is messy, and it gives a platform to viewpoints with which we may disagree or even find abhorrent, but it works.

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Trump vs. Twitter | Editorials | gjsentinel.com - The Grand Junction Daily Sentinel

The Burke County community may be wondering if the recent ruling from the North Carolina federal court allowing churches to resume indoor services will change the way church services are currently held.

Livestreaming worship services, Bible studies and prayer meetings through Facebook and YouTube have been well-received in the community and beyond, according to many Burke County church pastors.

Viewing is significantly higher than our regular attendance, said the Rev. George Logan, pastor of New Day Christian Church. Many of our members are sharing messages with their family and friends. Weve gotten positive messages and comments from people from around our community, as well as the country and abroad.

Many churches provide a CD of the service to watch for church members who are not on Facebook or YouTube or who may not be technologically savvy. Members also check in on them by phone.

First Baptist Church of Morganton also reaches out to members by mailing a weekly newsletter and offers its Sunday morning service livestream on CoMPAS Cable Channel 2.

Judging from the numbers of people viewing the Sunday morning services, it appears that we are reaching hundreds of viewers each week, said the Rev. Dr. Tom Bland Jr., senior pastor at FBC of Morganton. I suspect that other churches that have been conducting online services have had similar experiences.

Chambers Chapel Missionary Baptist Church and First Baptist Church of Glen Alpine offer drive-up services Sundays. Gaston Chapel AME hosts praise in the parking lot services, and First Baptist Church of Icard holds services on the church grounds with attendees spaced 6 feet apart.

This information is current as of May 20, 2020 and includes information from more than 70 communities served by Lee newspapers. Please check directly with the place of worship for any change in status or services prior to attending or tuning in.

On Saturday, May 16, Judge James C. Dever III, of the Eastern District of North Carolina federal court, issued a temporary restraining order blocking the government from enforcing Gov. Roy Coopers executive order banning indoor religious services, ruling that it was a violation of the First Amendment, according to a previous News Herald article.

The lawsuit was filed by the Rev. Ronnie Baity, pastor of Berean Baptist Church in Winston-Salem; Return America Inc.; and Peoples Baptist Church Inc. A hearing is scheduled for May 29.

A few pastors in the community offered to shed some light on how they will serve their congregations amid the new ruling and COVID-19.

Logan said they will eventually begin to hold indoor services, but not until they have a comprehensive plan in place, which they are working on now.

It is of utmost importance to accurately discern what Gods spirit is saying to us, Logan said. If we do so, we will effectively minister to and protect our members, while still respecting authority.

Bland said they followed the governors executive order precisely and voluntarily for many reasons, but mainly for the concern for the health and safety of church members and visitors.

Our church presently is praying about and exploring (the) next steps as we anticipate that our state soon will transition into Phase 2 of its reopening, Bland said. We have made no decisions yet, at least through the end of May and possibly longer. (Before) any changes, we will prepare our facilities as fully as possible through strict adherence to (the) Centers for Disease Control and Prevention guidelines.

Thrive Church is allowing indoor services beginning May 24, where members must register on Facebook to attend the 10:45 a.m. service. Seating is limited to 50 people. Masks and social distancing are mandatory. Families are allowed to sit together.

Bland explained what we need to remember to continue to protect people from the virus.

We do not want to risk jeopardizing the health of anyone who might attend, he said. We want to strive to obey the biblical commandment to love our neighbors as ourselves, including through how we conduct ourselves as a church family as this pandemic continues.

Barbara Jolly-Deakle is a News Herald correspondent and a member of the Morganton Writers Group. She can be reached at BabbyWrites@CompasCable.net.

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Churches respond to COVID-19, First Amendment ruling - Morganton News Herald

GENESEO Livingston County Sheriff Thomas J. Dougherty confirmed Tuesday his deputies wont disturb gatherings of more than 10 people if theyre gathered for the purpose of practicing their religion. Such a gathering would be in violation of an executive order from Gov. Andrew Cuomo and punishable by an up to $1,000 fine.

I did put out a written directive to our patrol division members stating that if we are called to investigate a PAUSE violation involving people gathering for the purpose of a religious service, to do a drive by only, document in a report and forward to the chief deputy of our police services for further review, said Dougherty in an email. We will not be disrupting these services.

The contents of the directive are in line with the actions the Sheriffs Office has taken in response to previous complaints alleging violations of Cuomos New York on PAUSE order in Livingston County, Dougherty said.

We have not made one arrest on a PAUSE-related complaint but instead investigated and, if founded, educated only, he explained.

Dougherty said his decision to issue the directive was very difficult, especially given the intent of Cuomos order to minimize loss of life during a public health crisis. But with businesses starting to resume operations under the first phase of the governors reopening plan, and more slated to begin opening in Phase II, it ultimately came down to a Constitutional issue, he said.

The First Amendment is very clear and therefore we will not interfere with these religious gatherings, Dougherty said. Instead, we will do the drive by, document and review each case without disruption.

Dougherty declined to provide a copy of the written directive he sent to deputies.

New Yorks public gathering restrictions, which have been in place in some form since mid-March, started to slacken earlier this month in certain areas of the state that met criteria laid out in Cuomos reopening plan, which he dubbed New York Forward.

The plan established four different phases during which certain types of business are allowed to start reopening in the regions of the state that achieve public health metrics, such as a sufficiently low coronavirus infection rate and the presence of robust contact-tracing capacity.

The Finger Lakes Region, which includes Livingston County, was among the regions allowed to begin Phase I reopening May 15. The phase allowed businesses in the construction, agriculture and manufacturing industries, among others, to resume operations, provided they observe social distancing and other public health measures meant to slow the spread of the new coronavirus.

To read the New York Forward reopening guidelines, click here.

But nowhere in Cuomos initial reopening plan was there mention of when places of worship would be allowed to resume normal religious observances. In statements May 18, the states budget director, Robert Mujica, said churches would be allowed to begin reopening in the fourth and final phase of the states reopening plan.

That drew criticism from faith leaders, 300 of whom signed an open letter May 19 calling on Cuomo to prioritize the safe re-opening of churches for in-person worship services.

In a statement announcing the letter, Jason McGuire, executive director for New Yorkers for Constitutional Freedoms, a conservative values advocacy and lobbying group, argued churches should be allowed to begin reopening earlier, during Phase II.

If it is safe to re-open retail establishments in a given region, it is safe to re-open churches in that region as well, said McGuire, a Lima resident.

Local faith leaders who signed the open letter include Rev. Paul Palmer of the Oakland Wesleyan Church in Nunda, Pastor Donald Ray of the Pleasant Valley Baptist Church in Geneseo, and Pastor Matthew White of Village Baptist Church in Mount Morris.

To read the letter, click here.

In statements May 20, Cuomo addressed the issue, saying religious gatherings of up to 10 people were OK, as long as participants observed social distancing guidelines and wore face masks. The governor followed those statements with a May 21 executive order, which permitted gatherings of ten or fewer individuals for any religious service or ceremony.

To read the executive order, click here.

Cuomo also encouraged places of worship to consider drive-in and parking lot services for religious ceremonies.

As a former altar boy, I get it. I think even at this time of stress and when people are so anxious and so confused, I think those religious ceremonies can be very comforting, Cuomo said. But we need to find out how to do it, and do it safely, and do it smartly. The last thing we want to do is have a religious ceremony that winds up having more people infected.

In a statement posted to its website, NYCF said Cuomos 10 or fewer people concession on religious services doesnt go far enough, calling it an attempt to appease faith communities by making a minor gesture in our direction that falls far short of what is needed.

Added the group: A continued ban on worship services of more than 10 people effectively prevents all but the smallest churches from holding in-person services. There is no public health reason to bar churches in areas that have not been significantly affected by the pandemic from holding in-person services, provided that health and safety precautions are taken.

Excerpt from:
'The First Amendment is very clear': Sheriff's Office won't break up religious services for 'NY on PAUSE' violations - The Livingston County News

On May 28, President Trump signed an executive order aimed at giving the government a freer hand in regulating content online. The order focuses on legal and constitutional guardrails that most often apply to online platforms that host content created by third parties, but the executive order as a whole could have implications for press freedom. The executive order comes two days after Twitter, for the first time, added a fact-checking notice to two of the presidents tweets about the use of mail-in ballots.

The first line of the presidents order declares that free speech is the bedrock of American democracy, said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. But the timing and content of this executive order only reinforce concerns that his motivation is to punish his perceived critics. That would be a central question for any courts of law that might be called upon to enforce the First Amendment norms we have enjoyed in this country for generations.

Of particular interest to the press, the executive order calls on federal and state officials to consider using consumer protection laws, including the Federal Trade Commissions authority to regulate unfair or deceptive practices, against platforms that, for instance, restrict speech in ways that do not align with those entities public representations about those practices.

Consumer protection law is meant to address demonstrably false claims like cigarettes are good for you it doesnt do well in making thorny calls about whether a platform or news organization is somehow biased, said Gabe Rottman, director of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press. But opening that door, which is exactly what this executive order wants to do, would give the government an enormously powerful tool to censor speech it doesnt like online. Given the broad sweep of its language, this executive order isnt just a concern for online speech, it should be of concern for news organizations and free press advocates as well.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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RCFP statement on Trump's social media executive order - Reporters Committee for Freedom of the Press

When President Donald Trump made unsubstantiated claims on Twitter May 26 about mail-in voting, it fact-checked him inserting beneath his tweets a hyperlink to more information on the subject.

President Trump then accused Twitter of totally silenc[ing] conservatives [sic] voices and threatened that [w]e will strongly regulate, or close them down, before we can ever allow this to happen.

The president of the United States is threatening to censor social media platforms because he doesnt like what they say.

No more blatant and frightening violation of the First Amendment is possible, he said. The core of the First Amendments free speech guarantee bars government from restricting speech based on viewpoint. If the Trump administration makes any effort to regulate Twitter, even in ways that would not appear to violate the First Amendment, Twitters lawyers can and should point to the presidents threats as evidence of unconstitutional animus.

What about free speech by Trump and conservatives?

Twitter is a private company. Under basic First Amendment principles, Twitter can say what it wants and edit as it pleases, Magarian said. However, Twitter is also a distinctly powerful platform for speech. Some people argue that Twitter should have some obligation to protect and respect free speech principles, and those arguments have weight.

But Twitters decision to provide links to additional facts does not violate free speech principles, Magarian said.

Twitter has faced frequent, sharp public criticisms for taking no action when users post false, misleading and harmful statements. In this case, Twitter let Trump have his say. In fact, what Twitter did promotes free speech.

In fact, what Twitter did promotes free speech, he said. Twitter has faced frequent, sharp public criticisms for taking no action when users post false, misleading and harmful statements. In this case, Twitter let Trump have his say. Twitter then made an editorial judgment that publishing the presidents unsubstantiated claims about an important public issue justified giving Twitters users easy access to more information about that issue. Free speech principles are supposed to promote debate and make us more informed. Twitter did exactly that.

The presidents response to Twitters action broadly calls into question conservatives constant complaints that political correctness and (in Trumps words) the lamestream media silence right-wing speech, Magarian added. Conservatives have used communications technology very effectively to promote their viewpoints. What does it say when, facing the mildest and most constructive imaginable form of criticism, the conservative president threatens to censor his critics? Perhaps it says that conservatives like Trump dont really care about the free speech of anyone but themselves.

Social media platforms should promote free speech, Magarian said.

They should try to prevent misinformation, especially government propaganda, in ways that do not stifle the free exchange of ideas, he said. The government must not use its power to attack ideas it objects to. What Trump has said and done today betrays every one of those simple, crucial free speech principles.

Link:
WashU Expert: Trump attacks on Twitter betray free speech principles - Washington University in St. Louis Newsroom

As the digital landscape in the United States evolves, federal courts are reexamining federal cybersecurity laws enacted during an era before individuals, companies, and the government had easy access to computers and the internet. In particular, the Computer Fraud and Abuse Act (CFAA), 18 USC 1030, a cybersecurity bill enacted in 1986 as an amendment to an existing computer fraud law, has come under significant scrutiny. In this blog post, we will review the CFAA and recent federal court activity regarding the law.

In 1986, concerned about growing criminality through the use of computers in the United States, Congress enacted the CFAA, making it a crime to intentionally access[] a computer without authorization or exceed[] authorized access, and thereby obtain[] . . . information from any protected computer (the Access Provision). In 1994, the CFAA was amended and private parties were permitted to bring causes of actions and obtain damages thereunder.

Over the years, Congress has continued to broaden the scope of the CFAA, most recently in 2008, in order to more accurately address more contemporary issues, including extortion and ransomware. Today, the CFAA protects computers, smart devices, and databases, among other things, from different types of computer fraud, including data breaches, hacking, and intentional interruptions of service.

The CFAA has been the subject of significant legal challenges over the years, and federal circuit courts have been divided on how to interpret certain areas of the law. For example, in the employment context, courts are split on whether an employees violation of company policy constitutes a CFAA violation; the US Supreme Court recently granted certiorari in Van Buren v. United States to potentially resolve this split.

The employment context is not the only area of the law that has been challenged. In Sandvig v. Barr academic researchers from Boston brought a pre-enforcement challenge in the US District Court for the District of Columbia, arguing that the CFAA would chill their First Amendment right to free speech on a research project they intended to perform. The researchers planned to test whether employment websites discriminate on the basis of race and gender, and intended to provide false information to target certain websites to test their hypothesis, which would be in violation of those websites online terms of service. Concerned about potential exposure to criminal claims under the CFAA, the researchers brought a challenge in federal court before beginning their research.

Without reaching the First Amendment issue or ruling on the employers computer-use policy that will be decided by the Supreme Court, the DC District Court adopted a narrow interpretation of the Access Provision, stating that the CFAA does not criminalize mere terms-of-service violations on consumer websites, and, thus, [the] plaintiffs proposed research plans are not criminal under the CFAA. In support of its decision, the court reasoned that (1) the consumer website terms of services do not provide adequate notice for purposes of criminal liability, (2) criminalizing violations of private websites terms of services raises considerable nondelegation issues, and (3) the rule of lenity and the constitutional avoidance canon weigh against a broad interpretation of the exceeds authorized access as encompassing terms-of-service violations.

As the digital landscape continues to develop, we expect to see more challenges under the CFAA appear on docket sheets across the federal court system. We will provide further updates on this developing area of the law in future posts.

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Reexamining the Computer Fraud and Abuse Act | Morgan Lewis - Tech & Sourcing - JD Supra

InVIP Products LLC v Jack Daniels Properties Inc, the US Court of Appeals for the Ninth Circuit has held that a dog toy meant to humorously evoke a bottle of whiskey was a protectable expressive work. In this guest post, Christian W Liedtke, partner at acuminis and co-author of an amicus brief submitted by INTA seeking en banc review of the decision, argues that the ruling, as it presently stands, is alarming and opens the floodgates to widespread theft of goodwill under the guise of the First Amendment.

VIP Products LLC v Jack Daniels Properties (18-16012 (9th Cir 31 March 2020)) is a case between VIP Products, one of the largest makers of dog toys and other pet accessories in the United States, and defendant Jack Daniels Properties, operator of the oldest whiskey distillery in the United States and owner of trademarks and trade dress appearing on Jack Daniels Tennessee whiskey. While the parties respective businesses could scarcely appear more different on the surface, they intersected thanks to a dog toy sold by VIP as the Bad Spaniels Silly Squeaker.

The Bad Spaniels Silly Squeaker toy is fashioned after a bottle of Jack Daniels Old No 7 Black Label Tennessee Whiskey; however, the toy includes a variety of dog-themed alterations. Specifically, the Bad Spaniels Silly Squeaker is meant to suggest that the whiskey has been replaced with dog feces. Along those lines, while the script on a Jack Daniels bottle would read Old No. 7, that language was replaced on the Bad Spaniels Silly Squeaker with Old No. 2 followed immediately by the words On Your Tennessee Carpet, instead of Tennessee Sour Mash Whiskey. Similarly, while the label on a Jack Daniels bottle would read 40% ALC. BY VOL. (80 PROOF), that language was replaced on VIPs Bad Spaniels Silly Squeaker with a label that reads 43% POO BY VOLUME and 100% SMELLY.

It should be noted that, on the back of the packaging for the Bad Spaniels Silly Squeaker toy, it states: This product is not affiliated with Jack Daniels. An image of the bottle toy adjacent to a Jack Daniels bottle is reprinted below.

Around September 2014, Jack Daniels sent VIP a cease and desist letter, demanding, inter alia, that VIP stop selling the Bad Spaniels Silly Squeaker toy. Shortly after receiving the Jack Daniels demand, VIP instituted a declaratory judgment action against Jack Daniels, seeking a declaration that:

In addition, VIP sought cancellation of the Jack Daniels USPTO registration for the configuration and shape of its whiskey bottle.

Responding to VIPs declaratory judgment suit, Jack Daniels counterclaimed with various state and federal claims for, inter alia, trademark and trade dress infringement, trademark dilution (by tarnishment, but not by blurring) and false designation.

The parties cross moved for summary judgment. In its motion, VIP argued that the infringement and dilution claims should be dismissed in light of its defences of nominative and First Amendment fair use. VIP further argued that, even without those defences, Jack Daniels could not prove its dilution claims or that the JACK DANIELS trademarks and trade dress were functional and/or non-distinctive.

In response to VIPs motion, Jack Daniels argued that the fair-use defences were inapplicable. Jack Daniels further argued that its trade dress was non-functional and distinctive as a matter of law, and urged the District Court to leave for trial its dilution claims.

The District Court rejected VIPs attempt to rely on a First Amendment fair-use defence by concluding that the Bad Spaniels Silly Squeaker toy was not an expressive work. Notably, the Ninth Circuit has utilised the phrase expressive works instead of artistic works since Brown v Electronic Arts, Inc (724 F.3d 1235, 1241 (9th Cir 2013)). In rejecting VIPs defence, the District Court applied the Rogers test, first articulated by the Second Circuit in Rogers v Grimaldi (875 F.2d 994 (2d Cir 1989). As interpreted by the District Court, the Rogers test applies to artistic or expressive works such as movies, plays, books and songs, and requires courts to construe trademark law only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. The District Court determined that the First Amendment affords no protection to VIP because it is trademark law that regulates misleading commercial speech where anothers trademark is used for source identification in a way likely to cause consumer confusion.

In its analysis, the District Court compared the case to a 2002 case from the Southern District of New York, Tommy Hilfiger Licensing v Nature Labs (221 F Supp 2d 410 (SDNY 2002)). In Tommy Hilfiger, First Amendment protections were determined not to apply to Timmy Holedigger, a dog perfume designed to be a parody of the TOMMY HILFIGER trademark, because Tommy Holedigger was meant, at least in part, to promote a somewhat non-expressive, commercial product.

The case between VIP and Jack Daniels continued to trial. At the end of a four-day bench trial, the District Court ruled for Jack Daniels and issued a permanent injunction enjoining VIP from manufacturing and selling the Bad Spaniels Silly Squeaker toy.

VIP appealed and had some success in the Ninth Circuit. In light of its determination that the Bad Spaniels Silly Squeaker toy was an expressive work, the Ninth Circuit also reversed the District Courts decision on dilution by tarnishment. According to the Ninth Circuit, the Bad Spaniels Silly Squeaker toy used the Jack Daniels design and mark to convey a humorous message, and that message was protected by the First Amendment. The Ninth Circuit accordingly held that VIP was entitled to summary judgment on the federal and state trademark dilution claims.

On 22 April 2020, INTA filed an amicus curiae brief in support of the Jack Daniels request for en banc review of this case centered around two arguments. First, INTA highlights that the Ninth Circuits application of the Rogers doctrine to commercial goods is unprecedented. Second, it argues that the Ninth Circuit failed to apply the precedent set by the Supreme Court in Bolger v Youngs Drugs Prods Corp (463 US at 66-67) when making its determination that the Bad Spaniels toy constituted non-commercial use.

This week, on 26 May, a group of law professors filed an amicus curiae brief in support of VIP also advancing two arguments. First, the law professors argue that the Ninth Circuit properly applied the Rogers test and that the Bad Spaniels dog toy was correctly considered non-commercial and thus exempt from trademark infringement liability. Second, perhaps more dramatically, the law professors argue that the concept of dilution by tarnishment is unconstitutional.

The Ninth Circuits decision, as it presently stands, is alarming and goes beyond allowing dogs to do their business all over brand equity; it opens the floodgates to widespread theft of goodwill under the guise of the First Amendment.

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Going to the dogs: the Ninth Circuit's erosion of trademark rights exclusive guest post - World Trademark Review

Well-known First Amendment lawyer Floyd Abrams dismissed President Donald Trumps angry assertion that Twitter was completely stifling free speech by adding a misinformation warning label to two of his inaccurate tweets about mail-in voting.

Speaking with SiriusXM host and ABC News chief legal analyst Dan Abrams, the attorney who famously argued the Pentagon Papers case said Trump had no real argument that his First Amendment rights were somehow being violated by the social media platform. As Abrams noted, Trump ability to post whatever he wants has not been affected in any way.

What hes really saying is not that theyre limiting his speech, he can say anything he wants and not even that theyre taking him off [the site], the free speech advocate explained. So, what hes saying, and hes really very clear about it, is not that it violates him by keeping him from speaking. Hes saying he wants to speak in a way where the other side, or critics of his, or people who are saying what hes saying is just false, will not have a chance to respond.

The elder Abrams Floyd is Dans father did question Twitters logic, however, in its selective application of actively fact-checking Trump. Specifically, Abrams called out Twitter for targeting two of Trumps tweets that included false claims but also absurd yet nonetheless factually irrefutable predictions about mail-in voting. Notably, Abrams pointed to Trumps recent Twitter campaign spreading a vicious conspiracy theory about MSNBC host and political foil, Joe Scarborough.

It is sort of an odd choice, Abrams agreed when asked about the social media platforms decision. Some of what the president was saying was sort of a prediction as to the future. And predictions arent facts anyway, right?

That to me is very different where you have a situation where, by a series of accusations, carefully phrased, maybe for legal reasons, buy carefully phrased to be statements of suspicion and calling for investigation, but in a context where there is, literally,literallyno basis at all for an investigation and is obviously an effort to pay back Joe Scarborough and which does real harm to the [Lori Klausutis] family.

That comes a lot closer to Twitters own guidelines about avoiding harassment, Abrams pointed out. That does sound very far down the road, to me at least, of harassing Joe Scarborough at the same time it is inflicting predictable and terrible pain on the family of this dead woman.

Listen to the audio above, via SiriusXM Channel POTUS 124.

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First Amendment Lawyer Dismisses Trumps Claim That Twitter Is Stifling Free Speech: He Doesnt Want Critics to Have a Chance to Respond - Mediaite