Monthly Archives: May 2020

This post based its initial analysis on a draft Executive Order. It has been updated to reflect the final order, available here.

President Trumps Executive Order targeting social media companies is an assault on free expression online and a transparent attempt to retaliate against Twitter for its decision to curate (well, really just to fact-check) his posts and deter everyone else from taking similar steps. The good news is that, assuming the final order looks like the draft we reviewed on Wednesday, it wont survive judicial scrutiny. To see why, lets take a deeper look at its incorrect reading of Section 230 (47 U.S.C. 230) and how the order violates the First Amendment.

The main thrust of the order is to attack Section 230, the law that underlies the structure of our modern Internet and allows online services to host diverse forums for users speech. These platforms are currently the primary way that the majority of people express themselves online. To ensure that companies remain able to let other people express themselves online, Section 230 grants online intermediaries broad immunity from liability arising from publishing anothers speech. It contains two separate and independent protections.

Subsection (c)(1) shields from liability all traditional publication decisions related to content created by others, including editing, and decisions to publish or not publish. It protects online platforms from liability for hosting user-generated content that others claim is unlawful. For example, if Alice has a blog on WordPress, and Bob accuses Clyde of having said something terrible in the blogs comments, Section 230(c)(1) ensures that neither Alice nor WordPress are liable for Bobs statements about Clyde. The subsection also would also protect Alice and WordPress from claims from Bob for Clyde's comment even if Alice removed Bob's comment.

Subsection (c)(2) is an additional and independent protection from legal challenges brought by users when platforms decide to edit or to not publish material they deem to be obscene or otherwise objectionable. Unlike (c)(1), (c)(2) requires that the decision be in good faith. In the context of the above example, (c)(2) would protect Alice and WordPress when Alice decides to remove a term within the comment from Clyde that she considers to be offensive. Clyde cannot successfully sue Alice for that editorial action as long as Alice acted in good faith.

The legal protections in subsections (c)(1) and (c)(2) are completely independent of one another. There is no basis in the language of Section 230 to qualify (c)(1)s immunity on platforms obtaining immunity under (c)(2). And courts, including the U.S. Court of Appeals for the Ninth Circuit, have correctly interpreted the provisions as distinct and independent liability shields:

Subsection (c)(1), by itself, shields from liability all publication decisions, whether to edit, to remove, or to post, with respect to content generated entirely by third parties. Subsection (c)(2), for its part, provides an additional shield from liability, but only for any action voluntarily taken in good faith to restrict access to or availability of material that the provider ... considers to be obscene ... or otherwise objectionable.

Even though neither the statute nor court opinions that interpret it mush these two Section 230 provisions together, the order asks the Federal Communications Commission to start a rulemaking and consider linking the two provision's liability shields. The order asks the FCC to consider whether a finding that a platform failed to act in "good faith" under subsection (c)(2) also disqualifies the platform from claiming immunity under section (c)(1).

In short, the order tasks government agencies with defining good faith and eventually deciding whether any platforms decision to edit, remove, or otherwise moderate user-generated content meets it, upon pain of losing access to all of Section 230's protections.

Should the order result in FCC rules interpreting 230 that way, a platform's single act of editing user content that the government doesnt like could result in losing both kinds of protections under 230. This essentially will work as a trigger to remove Section 230s protections entirely from a host of anything that someone disagrees with. But the impact of that trigger would be much broader than simply being liable for the moderation activities purportedly done in bad faith: Once a platform was deemed not in good faith, it could lose (c)(1) immunity for all user-generated content, not just the triggering content. This could result in platforms being subjected to a torrent of private litigation for thousands of completely unrelated publication decisions.

Taking a step back, the order purports to give the Executive Branch and federal agencies powerful leverage to force platforms to publish what the government wants them to publish, on pain of losing Section 230s protections. But even if section 230 permitted this, and it doesnt, the First Amendment bars such intrusions on editorial and curatorial freedom.

The Supreme Court has consistently upheld the right of publishers to make these types of editorial decisions. While the order faults social media platforms for not being purely passive conduits of user speech, the Court derived the First Amendment right from that very feature.

In its 1974 decision in Miami Herald Co v. Tornillo, the Court explained:

A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials -- whether fair or unfair -- constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.

Courts have consistently applied this rule to social media platforms, including the 9th Circuits recent decision in Prager U v. Google and a decision yesterday by the U.S. Court of Appeals for the District of Columbia in a case brought by Freedom Watch and Laura Loomer against Google. In another case, a court ruled that when online platforms "select and arrange others materials, and add the all-important ordering that causes some materials to be displayed first and others last, they are engaging in fully protected First Amendment expressionthe presentation of an edited compilation of speech generated by other persons."

And just last term in Manhattan Community Access v. Halleck, the Supreme Court rejected the argument that hosting the speech of others negated these editorial freedoms. The court wrote, In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

It went on to note that Benjamin Franklin did not have to operate his newspaper as a stagecoach, with seats for everyone, and that The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property."

The Supreme Court also affirmed that these principles applied "Regardless of whether something 'is a forum more in a metaphysical than in a spatial or geographic sense.

EFF filed amicus briefs in Prager U and Manhattan Community Access, urging that very result. These cases thus foreclose the Presidents ability to intrude on platforms editorial decisions and to transform them into public forums akin to parks and sidewalks.

But even if the First Amendment were not implicated, the President cannot use an order to rewrite an act of Congress. In passing 230, Congress did not grant the Executive the ability to make rules for how the law should be interpreted or implemented. The order cannot abrogate power to the President that Congress has not given.

We should see this order in light of what prompted it: the Presidents personal disagreement with Twitters decisions to curate his own tweets. Thus despite the orders lofty praise for free and open debate on the Internet, this order is in no way based on a broader concern for freedom of speech and the press.

Indeed, this Administration has shown little regard, and much contempt, for freedom of speech and the press. Were skeptical that the order will actually advance the ideals of freedom of speech or be justly implemented.

There are legitimate concerns about the current state of online expression, including how a handful of powerful platforms have centralized user speech to the detriment of competition in the market for online services and users privacy and free expression. But the order announced today doesn't actually address those legitimate concerns and it isn't the vehicle to fix those problems. Instead, it represents a heavy-handed attempt by the President to retaliate against an American company for not doing his bidding. It must be stopped.

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Trump Executive Order Misreads Key Law Promoting Free Expression Online and Violates the First Amendment - EFF

Introduction

On Wednesday, White House press secretary Kayleigh McEnany told reporters that President Donald Trump intended to sign an executive order on Thursday regulating social media companies. This move comes after Twitter placed a fact-checking label on one of President Trumps tweets concerning voting by mail. While the digital age has led to an explosion of speech of many different forms and opinions, social media platforms have faced criticisms from both the left and the right for the decisions they make regarding what content to leave up, take down, or otherwise moderate. Nevertheless, those that value freedom of expression or see the benefits technology brings should be concerned about calls for government regulation of private actors in this area.

Free Speech Rights and Regulation of Social Media

Critics of content-moderation decisionsto remove certain users or content or add warnings or fact checks to this informationquestion if platforms decisions to do so violate Free Speech rights. These internet platforms should be neutral to all speech and such decisions are currently biased, the argument goes. But these claims misunderstand the constitutional claims involved with violations of the First Amendment.

First, with each new content-moderation controversy, it has been pointed out that these are private platforms. First Amendment speech rights restrain government, not private actors, when it comes to the regulation of speech. Therefore, the First Amendment doesnt directly implicate private actors such as social media companies.

Second, government regulation of private platforms, such as those regulations proposed in the executive order, could raise serious First Amendment concerns. Platforms themselves have First Amendment speech rights, and they exercise these when they themselves speak, such as by attaching a fact check to user-generated content. As Judge Andrew Napolitano explained on Fox News, The president can say what he wants about Twitter and they can say what they want about him. Government attempts to control or regulate such decisions does not further Free Speech, but rather undermines the Free Speech rights of the platforms themselves.

It should be concerning how these regulations could spill over into other expressions beyond social media. While the executive order may only concern the regulation of social media platforms, it could set a dangerous precedent if upheld that could allow future government intervention into other speech rights. Particularly given a vague standard or catchall such as otherwise objectionable, different officials could weaponize such terms to remove unpopular opinions from the other side.

Case Law Does Not Support Government Intervention Into Decisions Concerning Online Speech

The expected executive order argues that social media platforms serve as the functional equivalent of a traditional public forum. This argument has been repeatedly rejected by the courts.

These arguments for the executive order rely on Packingham v. North Carolina, where the Supreme Court held that state actors could not impose restrictions on access to internet platforms. But since Packingham, courts have repeatedly stated that private social media companies are not required to apply First Amendment Free Speech standards to their own content moderation decisions. Both California state and federal courts have rejected such claims in cases brought by Prager University after YouTube placed some of its videos in restricted mode and limited its advertising. Earlier this week in a lawsuit brought by activist Laura Loomer and FreedomWatch, the U.S. District Court for the District of Columbia ruled that private social media platforms were not places of public accommodation as defined by the DC Human Rights Act, and thus that arguments against private moderation regarding requirements for places of public accommodations failed. Both federal and state courts have come to the same conclusion for a variety of platforms following decisions to ban or remove content.

By carrying others speech, social media platforms are not transformed into a public square. This principle has been applied to traditional media as well as to new digital platforms. Cases surrounding libraries, bookstores, and wire services reached similar conclusions in a pre-digital age. The protection of platforms regarding their decisions about what content to allow reflects general legal principles and is not a special handout. Additionally, in Manhattan Communication Access Corp. v. Halleck, the Supreme Court held, in a decision written by Justice Brett Kavanaugh, that a privately operated public access television station was not a public forum bound by First Amendment standards. This case is likely more legally analogous to the current situation concerning social media platforms than Packingham is.

Fairness Would Actually Harm Conservative Voices Online

Many of the calls to regulate social media from the right call that platforms need to be accountable and fair. But requiring neutrality or removing Section 230 could result in a new version of the Fairness Doctrine and actually make it harder for new voices to be heard online.

Section 230, a law that limits the liability of an online platform for content created by users and enables it to make moderation decisions regarding such content, makes it easier for new platforms to emerge. In doing so, it provides speakers with new ways to express themselves or allows for a set of rules that better fits their preferences. For example, when it comes to fact-checking political speech, Facebook and Twitter have taken different approaches, as seen in comments from Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey. But a protection from liability and the ability to make different content-moderation decisions doesnt just protect the giant incumbents; it also allows new platforms and communities to develop without the risk that they get crushed before they can take hold. This can help expand speech to speakers that would have otherwise been left without a voice and creates a marketplace of ideas. As senior editor of The Dispatch David French wrote in Time regarding what Section 230 has allowed, While different sites have different rules and boundaries, the overall breadth of free speech has been extraordinary. Think about all the ways we have continued to feel connected by user-generated content during the current pandemic. Without Section 230, platforms would either be forced to engaged in constant moderation that would likely silence many legitimate discussions or engage in no moderation at all, resulting in the internet being a place not many people would enjoy.

But should the government require platforms rules to be fairly enforced? In the past this was tried with more traditional media under the Fairness Doctrine. The Fairness Doctrine obliged those licensed by the Federal Communications Commission (FCC) to ensure that coverage included opposing views by interested citizens. This rule resulted in radio and later television stations being required to carry certain responses and information, giving rise to concerns that the doctrine could chill speech and violate First Amendment rights. The FCC during the Reagan Administration removed the rule and this change in part allowed for the rise of conservative talk radio.

Requiring neutrality or removing Section 230 could backfire on the conservative voices that feel liberal platforms are biased against them. As Tech Freedoms Ashkhen Kazaryan explained, if platforms must be neutral to enjoy First Amendment protectionwebsites tailored for specific populations cease to exist.This decline in diversity would be concerning for both conservative voices that might want a more family-friendly experience and those in communities that may face persecution or discrimination such as the LGBTQ community. Fairness may sound like an ideal, but government-imposed neutrality would likely result in more silence and not more voices.

Conclusion

Government threatening to regulate online speech should be concerning regardless of which side of the aisle it comes from. The internet has enabled citizens to hold the government accountable, facilitated communication and creation in innovative ways, and resulted in more opportunities for expression than ever before. Many of the rationales behind such calls misunderstand the fundamentals of free speech and could damage founding American values as well as the very voices they claim to protect.

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Content Moderation, Section 230, and The First Amendment - AAF - American Action Forum

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Editorial Page Editor Jay Jochnowitz was recognized with the First Amendment Award in the New York State Associated Press Association 2019 awards.

Times Union Senior Editor Brendan J. Lyons in the Assembly Chamber in Albany, NY. (John Carl D'Annibale/Times Union)

In the 2019 New York State Associated Press Association awards, Copy Editor Joseph Stalvey won First Place in Headline Writing for this headline from the Nov. 21, 2019 Preview section.

In the 2019 New York State Associated Press Association awards, Copy Editor Joseph Stalvey won First Place in Headline Writing for "Cannabis Kin Generating its Own Buzz" in the New York State Associated Press Association 2019 awards.

In the 2019 New York State Associated Press Association awards, Managing Editor Features/Sports Gary Hahn won Second Place in Headline Writing for this July 25, 2019 Preview cover headline.

In the 2019 New York State Associated Press Association awards, Managing Editor for Features and Sports Gary Hahn won Second Place in Headline Writing for "Fair, but Not Equal" in the New York State Associated Press Association 2019 awards.

Data Journalist and Online Producer Cathleen F. Crowley swept the Data Visualization category taking both First and Second Places for "Horse Death Tracker" and "School Debt" in the New York State Associated Press Association 2019 awards. And won a Second Place in Digital Storytelling with Senior Editor for State and Investigations Brendan J. Lyons and now-retired Executive News Editor and Online Producer Joyce Bassett. The team won Second Place in Digital Storytelling for "Raniere Stands Alone."

Executive News Editor and Online Producer Joyce Bassett, who is now retired and writing the weekly column "All In," won a Second Place in Digital Storytelling with Senior Editor for State and Investigations Brendan J. Lyons and Data Journalist and Online Producer Cathleen F. Crowley. The team won Second Place in Digital Storytelling for "Raniere Stands Alone."

Times Union Editor and Vice President Casey Seiler won First Place in Column in the 2019 New York State Associated Press Association awards. These are the columns that were submitted for the judges' consideration: "It didn't have to happen," "Anatomy of a total tank job" and "Lets not forget the enablers."

In the 2019 New York State Associated Press Association awards, Design Director Tom Palmer won First Place in News Full Page Design for this Dec. 19, 2019 A1.

Design Director Tom Palmer won First Place in News Full Page Design for his A1 page "Impeached" in the 2019 New York State Associated Press Association awards competition.

Photo Editor Will Waldron won First Place in Spot News Photo with this image in the 2019 New York State Associated Press Association awards. Here's the original caption: Skyelar Eriole, 5, one of the displaced residents of a Georgetta Dix Plaza fire, recalls how she escaped from the blaze on Wednesday morning, March 27, 2019, in Schenectady, N.Y. A morning fire struck two houses and left at least nine adults and children homeless in Hamilton Hill. (Will Waldron/Times Union)

Photo Editor Will Waldron won First Place Spot News Photo for "Silent Scream" in the 2019 New York State Associated Press Association awards.

Page Designer Tyswan Stewart took Second Place in Features or Sports Full Page Design with this Aug. 15, 2019 Preview cover in the 2019 New York State Associated Press Association awards.

Page Designer Tyswan Stewart won Second Place in Feature or Sports Full Page Design for his page "Woodstock at 50" in the New York State Associated Press Association 2019 awards.

In the 2019 New York State Associated Press Association awards, Page Designer Jeff Boyer won Second Place Illustration or Graphic for the illustration with this April 8, 2019 illustration with the editorial, "Nothing to cheer about."

Page Designer Jeff Boyer won Second Place in Illustration or Graphic for "State Tests" in the New York State Associated Press Association 2019 awards.

Former Capitol Reporter David Lombardo, who is now host of WCNY's Capitol Pressroom, won Second Place Podcast for "Tales from the Coup" in the 2019 New York State Associated Press Association awards.

ALBANY The Times Union celebrated Thursday on learning its staff members walked away from the annual New York State Associated Press Association contest with two statewide awards and almost a dozen other honors for its work.

Leading the way in the wins for 2019 work were Editorial Page Editor Jay Jochnowitz, who was recognized with the First Amendment Award, and Senior Editor for State and Investigations Brendan J. Lyons, who won the Michael Hendricks Journalist of the Year Award.

In its circulation class, which includes newspapers with an assessed weekly circulation of 250,000 to 999,999, Times Union staff won another 11 awards.

The range of these honors is a sign of the quality of the journalism the Times Union provides to its readers, said Casey Seiler, the papers editor and vice president. I'm especially pleased to see statewide recognition for the work of Brendan J. Lyons, one of the most dogged investigative journalists in a state with a lot of them, and Jay Jochnowitz, whose opinion writing gives the paper its fierce conscience.

In a challenging time for the business of journalism, the work of those recognized by the state AP this year shows why the Times Union maintains its vital role in the life of the Capital Region, said George Hearst III, the Times Union's publisher and CEO.

In its circulation class, the Times Union staff swept the Headline Writing category with Copy Editor Joseph Stalvey winning First Place for "Cannabis Kin Generating its Own Buzz" and Managing Editor for Features and Sports Gary Hahn winning Second Place for "Fair, but Not Equal."

Lyons won another award with Data Journalist and Online Producer Cathleen F. Crowley and now-retired Executive News Editor and Online Producer Joyce Bassett, who now writes the weekly "All In" column for the paper's sports department. The team won Second Place in Digital Storytelling for "Raniere Stands Alone," a preview of the trial of NXIVM's Keith Raniere.

Crowley swept the Data Visualization category, taking both First and Second Places for "Horse Death Tracker" and "School Debt," respectively.

Seiler won First Place in Column Writing for a package of three examples of his work: "It didn't have to happen," "Anatomy of a total tank job" and "Lets not forget the enablers."

Design Director Tom Palmer won First Place in News Full Page Design for his A1 page "Impeached."

Photo Editor Will Waldron won First Place Spot News Photo for "Silent Scream," an image of a young girl reacting to a house fire at her Schenectady home.

Page Designer Tyswan Stewart won Second Place in Feature or Sports Full Page Design for his page "Woodstock at 50."

Page Designer Jeff Boyer won Second Place in Illustration or Graphic for "State Tests."

And former Capitol Reporter David Lombardo, who is now host of WCNY's Capitol Pressroom, won Second Place Podcast for "Tales from the Coup," his multi-part narrative on the 2009 Republican takeover of the state Senate.

For the First Amendment Award, presented for a distinguished contribution to freedom of the press, the Times Union submitted a collection of editorials Jochnowitz wrote. Judges look for the submission that best exemplifies the spirit and intent of the First Amendment, including how the submission demonstrates a news organization's efforts to fulfill its public service role to help ensure an unrestricted flow of information vital to a free society.

The following editorials comprised the submission from Jochnowitz: "Kill this secret arrest bill," "More sunshine not less," "Secrets within secrets," "Brutality's enablers," "Olympic secrecy," "Police secrecy must end," "Protect young journalists," "Not a private matter at all," "Public information, period," "NYISO's dark side," and "Redemption, not revision."

"I can't adequately express how gratifying it is to be recognized by my peers with an award that goes to the heart of so much of what journalism is about freedom of the press, freedom of speech, and the need to hold government accountable," Jochnowitz said. "While this is an individual award, I want to stress that the work I do on the opinion side would not be possible without all the work done by my colleagues, from the reporters and editors fighting every day to get the information I write about to a publisher who is fully committed to the Times Unions mission as a news organization."

The Michael Hendricks Journalist of the Year Award, in recognizing the work of a New York journalist, honors former Associated Press News Editor Michael Hendricks, who was dedicated to helping journalists get a start in this business. In selecting Lyons, judges looked at the quality and variety of his work samples, the impact of his work in the community, and the conditions under which he worked.

"The work of journalists has never been more important," Lyons said. "I appreciate this honor from the Associated Press. I am especially grateful to be surrounded at the Times Union by so many hard-working journalists who take seriously their duty to seek the truth, be fair and keep readers informed of the news that matters to them."

These were the submissions from Lyons considered by the judges: "McLaughlin: I'm the 'boss' of Rensselaer County," "School janitor with hidden past as priest left wake of abuse," "Inspector general probed ethics panel's alleged leak to Cuomo," "'Ghost guns' becoming more common across New York," and "Records detail Rikers inmates' troubles at Albany County jail."

The state AP association includes member newspapers as well as television and radio stations from across New York state. In announcing the winners, George Bodarky, who is president of the New York State Associated Press Association and News Director for WFUV, noted that 1,300 entries were submitted across the print and broadcast categories. In years past, the association would invite winners to a dinner in early June to celebrate the wins. In light of the pandemic, the association's board of directors voted to forgo the event this year.

"We hope you have a grand time celebrating the honors with your staff," Bodarky said in a letter to the winning organizations. "In the meantime, stay safe while you continue to produce amazing journalism covering one of the biggest stories of our lifetime from the state in the center of it."

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Times Union takes First Amendment and Journalist of the Year, 11 other awards in statewide contest - Times Union

In a recent decision from the Southern District of New York, Judge George B. Daniels held that the strong First Amendment interests in protecting free artistic expression warranted summary judgment that Activision Blizzards use of Humvee vehicle models in the blockbuster Call of Duty videogames was not a violation of the Lanham Act. Because the inclusion of Humvees represented genuine artistic expressionspecifically, the creation of a more realistic depiction of the armed forcesand was not in service of misappropriation or otherwise misleading as to the source of the game, the defendants were entitled to the dismissal of all of the plaintiffs claims.

Background

In AM General LLC v. Activision Blizzard, Inc. et al. (No. 17-cv-8644), Plaintiff AM General (AMG) had been the contract supplier of Humvees to the armed forces since the early 1980s, during which time they had seen ubiquitous use and deployment among U.S. military land forces. Since the 1990s, AMG had granted a few licenses to use the Humvee trademark in connection with products and services including at least some toys and at least four video games, although its primary business line remained the manufacture and sale of physical automobiles.

Defendant Activision Blizzard published the extremely popular Call of Duty videogame franchise, a series of military-styled first person shooters. In nine of these games, Humvees were depicted for various durations, at times requiring the player to interact with or ride in a Humvee, and with Humvees shown in promotional trailers and strategy guides. Following the 2016 release of Call of Duty: Modern Warfare Remastered, AMG brought suit in November of 2017 for trademark and trade dress infringement under the Lanham Act and various substantially related claims under the Lanham Act and parallel state laws.

The Case

At summary judgment, Activision Blizzard argued that the strong First Amendment interest in protecting free expression warranted dismissal of AMGs claims. The Court noted that there was a long line of precedent, beginning with Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), that weighed strongly in favor of protecting works of artistic expression against Lanham Act claims. (slip op. at 7). Rogers generally precluded the application of the Lanham Act to works of artistic expression where the use of the trademark has any artistic relevance to the underlying work whatsoeverso long as the artistically relevant use of the trademark did not explicitly mislead[] as to the source or the content of the work. (Id.)

Examining past cases implicating Rogers, the court held that a Lanham Act violation would not be supported against countervailing First Amendment concerns by the mere existence of a likelihood of confusion, but rather only in circumstances where the evidence for a likelihood of confusion was compelling, such as where undertaken for the purposes of misappropriation. The court further observed that the requirement that an artistic use of a mark have artistic relevance was not the same thing as being artistically required or obligatorythe use had to be in artistic good faith but there was no but for requirement that the use be indispensable.

The court found that Activision Blizzards interest in presenting military verisimilitude easily met the low bar for artistic relevance. The Court further found that, in view of the Polaroid factors [Polaroid v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961)], Activision Blizzards use of Humvees was not explicitly misleading. Despite some survey evidence showing potential confusion as to whether AMG had approved the use of Humvees in the game, there was ultimately little to suggest that Activision Blizzards use was of an appropriative rather than artistic character. In particular, the fact that AMG was a manufacturer of automobiles while Activision Blizzard produced videogames weighed heavily against any compelling finding of confusion. The Court was unmoved by AMGs argument that its licensing activities created an overlap in the market segments for Activision Blizzard and AMG, due to the sporadic and marginal nature of such licensing relative to AMGs primary business of making and selling automobiles. (slip op. at 14).

Summing up its analysis, the Court held that enhanc[ing] the games realism was a sufficient rationale to establish that the use of Humvees was an integral element of the games artistic expression under the Rogers line of cases. (slip op. at 19). That the art in question was commercially sold did not negate the protection afforded it under the First Amendment. Activision Blizzard was thus entitled to summary judgment against all of AMGs claims.

Takeaways from AMG v. Activision Blizzard

AMG v. Activision Blizzard is broadly helpful to both amateur and commercial producers of art who wish to include potentially trademarked material as part of a broader commitment to realism. Where a marks presence, even if not necessarily required, is so entwined with a realistic portrayal of artistic subject matter (as with Humvees and the military) that its use can be readily characterized as in good faith, AMG suggests that the use of the mark would generally be protected.

How far the holding of AMG extends, however, is not entirely clear with respect to marks for which licensing represents a more common and widespread business model than the sporadic and marginal business lines of the plaintiff in AMG. The AMG court put significant weight on the fact that there was no evidence of significant market overlap or direct competition between the plaintiffs automobiles and Activision Blizzards games, and thus no compelling case for consumer confusion in the context of such wildly different goods. The issue would, presumably, be more difficult to resolve in those instances in which a plaintiffs mark had a longer or more substantial history of being licensed in the same field in which an accused infringer sought to establish a protected use of that mark.

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First Amendment May Protect Use of Trademarks As Artistic Expression - JD Supra