Daily Archives: March 4, 2022

In recent months, Republican lawmakers in Texas and Florida have rallied behind a suite of efforts related to schools, children, issues of race, and issues of sexuality. At a glance, each represents an isolated case study in conservatisms wider cultural offensive. Taken together, however, all tell a much larger story about the Rights professed commitment to personal freedom and freedom of expression and the inconsistency with which its partisans apply their own chosen idioms.

The past decade has seen conservatives aggressively rally around a narrative about censorious college professors and an intellectually stifled culture increasingly averse to ideas some find uncomfortable. More broadly, the Right has tended to present itself as the only reliable steward of free speech in a society which now deems certain questions out of bounds and has seen the ongoing creep of a state empowered to suppress individual expression. However you come down on what are sometimes complex debates about education or pedagogy, its a story thats simply impossible to square with the kinds of moves Republican politicians are now willing to entertain, let alone what many are already using political power to do.

Recent developments in two states are especially instructive in this respect.

Last month, Texas lieutenant governor Dan Patrick signaled hell push to end tenure for new hires at the states public universities and colleges in a move to combat indoctrination and the teaching of Critical Race Theory (CRT) also opening the door to reforming local laws so that those who currently have tenure can have it revoked if authorities decide theyve engaged in wrongthink.

In Florida, which has also become a CRT battleground, the Republican-controlled house of representatives just approved a measure to prohibit discussions concerned with gender identity and sexual orientation in classrooms. Though the bills language refers specifically to children in a specific age range, its many critics rightly point out an obvious loophole that could potentially make its implications even more expansive the text referring to classroom instruction by school personnel or third parties on sexual orientation or gender identity . . . in kindergarten through grade 3 with the caveat or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards. Also empowering parents to sue districts perceived to have violated the new rules, the bill is transparently a first step toward what some conservatives clearly hope will be the eventual purging of some discussions from public schools altogether.

Given the Rights espoused commitment to freedom of speech and opposition to state overreach, you might think this would be a difficult circle to square. In relation to both CRT and discussions of sexual identity, however, the favored frame has become the idea of parental choice: a rhetorically useful way of packaging the agenda of social conservatism in the language of individual freedom and moral neutrality. One only needs to return to Texas to see just how hollow and selective the Rights application of this very concept actually is.

In what is easily the most grotesque of all the various efforts Republicans are currently pushing at the state level, Governor Greg Abbott last month asked the Texas Department of Family and Protective Services (DFPS) to launch investigations into instances of what he calls abusive procedures related to parents, children, and gender identity. Effectively, it means that the parents of transgender children can now be criminally investigated for affirming their childs identity and that a range of licensed professionals from doctors to teachers will be required to snitch on those who do. Less than a week on from Abbotts decree, two Texan parents one of whom is a DFPS employee are already being investigated (and are rightly suing).

Republican lawmakers, in short, will embrace the concept of parental autonomy in one instance and abandon it in the next. Freedom of speech is said to be under attack, but teachers and college faculty must face professional discipline if they transgress against the standards handed down by politicians. The state and its organs, it is said, should remain neutral on particular questions, but are also morally obligated to criminalize and punish certain lifestyles and viewpoints.

In one obvious sense, theres no internal consistency here the operating principle being free expression for me but not for thee. Then again, this apparent lack of consistency may offer us a deeper clue about whats really animating the Rights wider cultural offensive. Parse the language and aims of these various efforts, and its clear that their inspiration is nothing more nor less than a socially conservative idea of society in which individuals have prescribed roles and identities and the function of public institutions is to help bolster this natural order. Look at various polls on a range of issues, and its very difficult to make a convincing case that anything resembling such a worldview is shared by a majority of Americans which is probably one reason conservatives have tended to package their objectives in the bogus rhetoric of neutrality and choice.

Unfortunately, as Jennifer Berkshire observed in an essay for the Nation following Novembers Republican victory in Virginia, liberals embrace of instrumentalist slogans like College, Knowledge and Jobs and Get Skilled, Get a Job, Give Back has left Democrats ill-equipped to mount the more principled and holistic defense of public education that the Rights current onslaught demands. Since the 1990s, Americas liberals have increasingly seen the state as little more than a vehicle for facilitating markets and individual opportunities within them. Conversely, the Right understands that education potentially has much a thicker role to play and is more than happy to make heavy-handed use of the state to impose its minoritarian value system on public schools and beyond.

Given the creeping privatization of education and the punishing nature of higher ed tuition fees, its hardly possible for mainstream liberals to claim their politics have helped foster a vibrant culture of free inquiry or expression. Nevertheless, the kinds of measures at play in places like Florida and Texas are clearly irreconcilable with the binary fable of censorious liberals and freedom-loving conservatives through which the Right has increasingly framed recent debates.

Read more here:
The Republican Party Is Waging a War Against Personal Freedom and Free Expression - Jacobin magazine

Testimony Before The Tennessee General Assembly House Banking and Consumer Affairs Subcommittee on House Bill 859 In Reference to Censorship on Social Media Platforms

The Heartland Institute

March 2, 2022

Chairman Powers and Members of the Committee,

Thank you for holding a hearing on House Bill 859, legislation intended to challenge Big Tech when it comes to Tennesseans rights to political and religious free speech.

My name is Samantha Fillmore, and I am a State Government Relations Manager at The Heartland Institute. The Heartland Institute is a 38-year-old independent, national, nonprofit organization and our mission is to discover, develop, and promote free-market solutions to social and economic problems. Heartland is headquartered in Illinois and focuses on providing elected officials on all levels reliable and timely research on important policy issues such as Big Tech censorship.

Throughout 2021 and the beginning of this year we have had 85 pieces of legislation in 36 states all attempting to challenge Big Tech censorship. The volume of bills on this topic throughout the nation is indicative of the fact that many Americans recognize we are entering into a dangerous period of censorship at the hands of Big Tech oligarchs.

In the blink of an eye, the emergence of social media platforms has elevated the national conversation and political discourse to a size and scope nearly unimaginable a decade ago. The associated emerging technologies and mediums promised democratization of free speech in a way never dreamed of. Free speech and political activism, once the realm of partisans and professional pundits, was accessible such that people who were once spectators were now engaged.

However, this mass communication network is managed by a handful of powerful tech titans, who are shielded from liability and operate as monopolies. The consolidation of this power to these titans has now effectively erased the empowerment of millions of Americans and their newfound voices.

Where it has empowered voices and people across the political spectrum, it has also empowered the voices that seek to divide, misinform, and manipulate us. I would like to tell you that the very platforms on which those messages are spread have been fair and impartial, yet the truth is that they havent been.

The number of social network users worldwide reached 3.6 billion in 2020 and is projected to increase to 4.4 billion by 2025. This phenomenon was further exacerbated by the coronavirus pandemic. A Harris Poll conducted in the spring of 2020 found that 46 to 51 percent of American adults were using social media at higher rates than they were pre-pandemic. In addition, U.S. social network ad spending is projected to rise 21.3 percent from the already staggering $40 billion spent in 2020.

All of these statistics provide ample evidence that social networks have become so much more than a host for expression, memes, and life updates among friends and family. In todays world, social media companies have become a major sector of the U.S. economy, influencing corporate successes and failures.

Opponents of this legislation would argue that such censorship is appropriate because "market forces" have allowed these titans to rise to power. To that, I submit to you that these instances are not the product of a healthy free market but rather the result of a corrupted market.

Moreover, private corporations have no more of a right to suppress Americans free speech than does the government. Americans would never stand for a neighbor breaking into their house to forcibly take their possessions, just as the same would not stand for a rogue policeman. In this case, one is a private entity while one is a government entity. Similarly, Big Tech corporations have no more right to suppress your free speech rights than does the government. Government exists to defend our unalienable rights and especially our unalienable free speech rights from being suppressed by third parties.

Our right to free speech rights exist independent of the First Amendment. Our free speech rights do not exist because the government benevolently gave them to us in the First Amendment; our free speech rights exist because they are innate human rights that are unalienable, either by the government or any other actor. Tennessee has every right to independently safeguard our unalienable free speech rights from suppression by private corporations and that is what is HB 859 aims to accomplish.

This legislation would inject autonomy back to the state level for Tennessee lawmakers and constituents alike.

So here we are today, challenging the behavior of Big Tech for citizens of the state we all live in. To challenge the argument Big Tech perpetuates. The argument that they have a free-speech right to suppress other peoples free speech. This rationale would appear in a George Orwell novel. It is evident that Big Tech lacks transparency and respect for the moral obligation it has as a primary outlet for political discourse in our nation and the dissemination of information of public import.

A dominant user platform for speech simply does not have any right to silence Americans free speech rights. That is especially the case, given that social media and the internet are the primary means by which Americans today share information and ideas with each other. Respecting free speech rights on the primary means by which Americans communicate with each other is not forced speech in violation of the First Amendment.

House Bill 859 is good legislation, promoting overall free speech for residents of the Volunteer State. This bill sends the message to Tennessee constituents that clear and robust public debate is sacrosanct and any action or failure to act to ensure a robust debate will be met with hard questions, and if necessary, enabling policies.

Finally, I would like to submit to you that on the issue of freedom of speech, more speech is always the answer, never less.

Thank you for your time today.

For more information about The Heartland Institutes work, please visit our websites at http://www.heartland.org or http:/news.heartland.org, or call Samantha Fillmore at 312/377-4000. You can reach Samantha Fillmore by email at SFillmore@heartland.org.

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Publications - Testimony Before The Tennessee General Assembly House Banking and Consumer Affairs Subcommittee on House Bill 859 In Reference to...

On February 24, 2022, the U.S. Court of Appeals for the Federal Circuit, in In Re: Elster, overturned the Trademark Trial and Appeal Boards (TTAB) refusal to grant a trademark registration on the phrase TRUMP TOO SMALL for use on T-shirts. The Federal Circuit held that the Lanham Acts prohibition on the registration of marks including the surname of a living individual unconstitutionally restricted free speech in violation of the First Amendment as applied to this mark.

The U.S. Patent and Trademark Office (PTO) initially rejected Elsters proposed trademark on two grounds: (1) the mark used former President Trumps name without his written consent, in violation of section 2(c) of the Lanham Act; and (2) the mark falsely suggested a connection with former President Trump, in violation of section 2(a) of the Lanham Act. Elster appealed both decisions, and the TTAB affirmed based on section 2(c) grounds. Section 2(c) of the Lanham Act prohibits in relevant part the registration of a trademark that [c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent. 15 U.S.C. 1052(c). Elster appealed to the Federal Circuit, which reversed the TTABs decision.

This ruling extends a trend of courts striking down Lanham Act trademark restrictions based on the First Amendment right to freedom of speech. In the last five years, the U.S. Supreme Court held unconstitutional two Lanham Act provisions: (1) prohibiting the registration of marks containing derogatory terms and phrases (Matal v. Tam); and (2) prohibiting the registration of immoral or scandalous matter (Iancu v. Brunetti). While those Supreme Court cases did not address the provision at issue in Elster, the Federal Circuit noted that they do establish that a trademark represents private, not government, speech entitled to some form of First Amendment protection.

Before diving into the analysis, the Federal Circuit observed that [t]he First Amendment interests here are undoubtedly substantial. . . . The right to criticize public men is one of the prerogatives of American citizenship. Indeed, the Federal Circuit called criticism of government officials speech that is . . . at the heart of the First Amendment. In response, the TTAB argued that the First Amendment interests implicated by section 2(c) are outweighed by the governments substantial interest in protecting state-law privacy and publicity rights, grounded in tort and unfair competition law.

The Federal Circuit considered both of the TTABs arguments. First, as to the right of privacy, the Court held that the government has no legitimate interest in protecting the privacy of President Trump, the least private name in American life, from any injury to his personal feelings caused by the political criticism that Elsters mark advances. Without any actual malice, there can be no plausible claim that President Trump enjoys a right of privacy protecting him from criticism.

Second, the Court held that the right of publicity does not support a government restriction on the use of a mark because the mark is critical of a public official without his or her consent. Indeed, all the law that the government cited recognized this. For example, the only case that the government cited involving parody or criticism of public figures held that the sale of parody baseball cards featuring MLB players names and likenesses was protected speech under the First Amendment and did not violate the players right of publicity.

The Court acknowledged that the government does have interests to do with the right of publicity: first in protecting against copying or misappropriation of an existing mark, and second in preventing the issuance of marks that falsely suggest that President Trump has endorsed a particular product or service. However, the Court held that these interests arent implicated here, as there is no claim that this mark misappropriates Trumps name or an existing trademark, nor is there a claim that the mark suggests that Trump endorsed Elsters product.

In sum, the Court held that the government does not have a privacy or publicity interest in restricting speech critical of government officials or public figures in the trademark contextat least absent actual malice. The Court left open what would be necessary to prove actual malice. It did not address, whether, for example, biting criticism like calling former President Trump too small could be actual malice in some contexts.

The Court also stopped short of holding that Section 2(c) was facially unconstitutional. Since Elster raised only an as-applied challenge, the Court did not decide that issue, but commented that the provision may be overbroad insofar as it leaves the PTO no discretion to exempt trademarks that advance parody, criticism, commentary on matters of public importance, artistic transformation, or any other First Amendment interests. So, this question is left for another day.

Given that, as Elster wrote in his opening brief in 2021, [t]his case marks the third time in six years that this court must decide whether a statutory restriction on trademark registration complies with the First Amendment, it is probable that the question of whether Section 2(c) is unconstitutional will come up again.

Politicians and popular figures that are already open to public criticism are also now more likely to be open to criticism through trademark registrations. This increases their need to add monitoring trademark applications to their reputation management effortsespecially since phrases such as I hate XYZ Company or I dont really like Ted Cruz are now more likely to be granted trademark registration.

After all, those marks do not infringe on XYZ Company or Ted Cruzs right of privacy, do not misappropriate XYZ Companys or Ted Cruzs name or existing trademarks, and do not suggest that XYZ Company or Ted Cruz endorse a product showing that mark. If finding actual malice is the only way for the TTAB to reject a trademark registration for a phrase criticizing a public figure, Elster may have opened the gates for such marks.

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The First Amendment Trumps Another Restriction on Trademark Registrations - JD Supra

DAVID M. SHRIBMAN

We have just heard the president's State of the Union address. It was delivered in a fraught time by a man freighted with responsibility. He hit the right notes and struck the right tone. We have domestic differences, to be sure, but we are united in our disdain for Vladimir Putin, his expansionist impulses, his delusional view of history. Men and women of both parties generally applauded at the appropriate times. It was the sort of American moment that is rare in today's America.

The invasion of Ukraine has had many effects on us. It has caused us to reflect on the nature and value of freedom at a time when both are contested because of the spread of the coronavirus and the controversies about mask and vaccine mandates. It has prompted us to think about the role of government and elections at a time when the integrity of both have been challenged like never before, or at least since the onset of the Civil War. It has moved us to examine our views of what is a civil society and how we can build one together while retaining our separate views on the issues of the day.

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It also has caused us to think anew about the value of studying and knowing a bit about history. The number of history majors in our universities has fallen, dropping especially after the Great Recession and amid legitimate concerns about future employment. Unless you are seeking to teach in a classroom or take over my column, the study of history may seem like a luxury, an indulgence.

But this period may have changed all that. And as proof, let me go back in history and offer another president's State of the Union address, given at another time of challenge. Let's tune in, if just for a few excerpts, to what Franklin Delano Roosevelt said in his 1940 remarks -- and let's ponder whether Joe Biden might have delivered these very remarks Tuesday.

FDR: I have repeatedly warned that, whether we like it or not, the daily lives of American citizens will, of necessity, feel the shock of events on other continents. This is no longer mere theory; because it has been definitely proved to us by the facts of yesterday and today.

This was "definitely proved to us" by the facts of the past week, when "a quarrel in a far away country between people of whom we know nothing" -- the history-minded among you will recognize the phrase from Neville Chamberlain that captured his view of world affairs, leading to his capitulation to Adolf Hitler in 1938 -- sent shock waves across the United States.

FDR: To say that the domestic well-being of ... Americans is deeply affected by the well-being or the ill-being of the populations of other nations is only to recognize in world affairs the truth that we all accept in home affairs.

Here Roosevelt was stating the obvious to a nation where large portions of the population were oblivious to the obvious. We are more conscious of this now, and yet fresh voices continue to question whether the country should curtail its global engagement.

FDR: We must look ahead and see the effect on our own future if all the small nations of the world have their independence snatched from them or become mere appendages to relatively vast and powerful military systems.

This is a chilling sentence, aimed at Czechoslovakia (already in tatters) and Poland (divided by the Nazis and Soviets), and looking ahead to Romania (at the time neutral, but seven months from a fascist coup) and Greece (victim of the Nazis within a year).

FDR: It is, of course, true that the record of past centuries includes destruction of many small nations, the enslavement of peoples, and the building of empires on the foundation of force. But wholly apart from the greater international morality which we seek today, we recognize the practical fact that with modern weapons and modern conditions, modern man can no longer lead a civilized life if we are to go back to the practice of wars and conquests of the seventeenth and eighteenth centuries.

This is a passage with special resonance today, as Mr. Putin, fashioning himself the heir to Peter the Great (1672-1725) and behaving as the heir to Josef Stalin (1878-1953), is operating out of a worldview centuries old, even as he possesses nuclear weapons invented in the last century and enhanced hypersonic weapons refined only in the last decade.

FDR: Of course, the peoples of other nations have the right to choose their own form of Government. But we in this nation still believe that such choice should be predicated on certain freedoms which we think are essential everywhere. We know that we ourselves shall never be wholly safe at home unless other governments recognize such freedoms.

In these three sentences, Roosevelt harkens to one of his political heroes, Woodrow Wilson, who is in disrepute today for racist views and for the airy idealism that filled his Fourteen Points. But some of those Points are relevant to us today; several directly covered the broad thesis of national self-determination. Mr. Putin might be reminded that one of them asked for special consideration for Russia, where the Communist Revolution had occurred months earlier: "The treatment accorded Russia by her sister nations in the months to come will be the acid test of their good will, of their comprehension of her needs as distinguished from their own interests, and of their intelligent and unselfish sympathy."

A year later Roosevelt would use his State of the Union address to set out his Four Freedoms -- freedom of speech, freedom of worship, freedom from want and freedom from fear. The artist Norman Rockwell made them part of American iconography.

The freedom from fear seems especially poignant to us today. No one who has viewed Rockwell's portrayal -- a worried couple tucking their two children into bed -- can fail to contrast that with the image shot 'round the world on CNN of the worried mother of two seeking shelter in a Kharkiv subway station. "We woke up at 5 because we heard some explosions," she said. "We were scared."

The American father in the Rockwell painting held a newspaper. The words "BOMBINGS" and "HORROR" were in the headline. The Ukrainian mother in the subway station held her family's food. It was a bag of potato chips.

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Commentary: Reexamining the value of studying history | Columnists | elkodaily.com - Elko Daily Free Press

This opinion column was written by RGJ engagement editor Brett McGinness.

It was disheartening to see two grown men harassing Gov. Steve Sisolak and First Lady Kathy Sisolak in a Las Vegas restaurant this past weekend.

Despite Nevadas fast-growing population and increasing business and political clout, it still can feel less like a state and more like a large neighborhood, where its not surprising to see state officials out and about without an entourage or security detail.

This weekends incident pushes us further away from that neighborly small-town mentality.

Youre in here without security? one of the men asked. Im surprised you have the balls to be out here in public, punk.

Set aside (for now) the abhorrent threats of violence and theracist, baseless conspiracy theories these men shouted at the Sisolaks. This confrontationalbehavior isn't fit for political disagreements, or anywhere else in polite society it'sbehavior that would get anyone immediately kicked out of any bar in the state.

None of us should be OK with this.

And most of us arent. State Republicans and Democrats alike condemned the confrontation.Nevada GOP chair Michael J. McDonald wrote, "There is no place for the behavior and violent threats against the Governor."Attorney General Aaron Ford wrote on Twitter, Real patriots don't act like this, and anyone perpetuating these actions should be held accountable. Clark County Sheriff Joe Lombardo, the current front-runner to challenge Sisolak for the governorship, wrote, "Hateful verbal abuse and violent threats have no place in our political system."

On the other hand, Las Vegas City Councilwoman and Sisolak challenger Michele Fiore hastried to playit both ways, saying she does"not condone the personal attacks made in that confrontation" but also, "If you look at the history of dictators, pitchforks will be next."

Reno lawyer Joey Gilbert, another Republican gubernatorial candidate, said he couldn't condemn the actions due to freedom of speech concerns.

"While the comments directed toward Sisolak's job performance as Governor could not have been pleasant for him to hear," Gilbert said, "I'm sure he joins with me in agreeing with the following historical statements about the importance of supporting our First Amendment right to free speech."

Joey Gilbert is right. The men dohave the legal right to speak their minds about politics. But it sets an extremely low and shameful bar for our political discourse to simply say,"Hey, it'snot illegal."

Were swiftly descending into Rule by Incivility deferring to whoevers willing to be the loudest, make the biggest scene, act like the biggest jackass. In the absence of solid, fact-basedarguments, just be louder, repeat yourself more, and shout over their responses.

One of our two major political parties used to call itself The Party for Grown-ups but have proven to be anything but. The other one says, When they go low, we go high but have engaged in similar public harassment of politicians and pundits for years.

Its long past time to get back to the fundamentals of democracy. Its a good start to see voices throughout the political spectrum condemn the ambush of the governor and first lady. But we need to demand better from ourselves, from our neighbors, and especially members of our political tribes.

Were the worlds oldest democracy. Lets start acting like grown-ups again.

Brett McGinness is the engagement editor for the Reno Gazette Journal. He's also the writer of The Reno Memo a free newsletter about news in the Biggest Little City.Subscribe to the newsletter right here. Considersupporting the Reno Gazette Journal,too.

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Opinion: Jackass-ocracy harassment of Sisolaks another example of how far we've fallen | McGinness - Reno Gazette Journal