Daily Archives: April 22, 2022

Goldstones most recent book is "On Account of Race: The Supreme Court, White Supremacy, and the Ravaging of African American Voting Rights."

On April 12, former Vice President Mike Pence gave a talk at the University of Virginia as part of the Ken & Janice Shengold Advancing Freedom Lecture Series. His appearance was sponsored by Young Americans for Freedom, a conservative students organization founded by William F. Buckley Jr. in 1960. Tickets were free and the lecture was open to all. After the invitation was announced, as is inevitable these days when a controversial speaker is invited to a college campus, fierce protests ensued with demands that Pence not be granted such a prestigious forum.

An editorial in the Cavalier Daily, the universitys student newspaper established in 1890, was particularly scathing. For Pence, it read, gay couples signify a societal collapse, Black lives do not matter, transgender individuals and immigrants do not deserve protection, and the pandemic should not be taken seriously. The editorial went on to accuse Pence of at least tacitly encouraging violence against marginalized groups, with the college administration complicit by its willingness to provide him a platform. The Universitys silence is deafening. Do not mistake this for neutrality, however. To be silent in the face of those like Pence is a choice in this case, a choice to fail to protect the lives of those on Grounds who Pence blatantly threatens through his rhetoric and policies.

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The editorial instigated as much of a backlash as had the invitation, and the resulting kerfuffle made national headlines. Liberals decried Pences opportunity to foist hate speech on impressionable students, while conservatives brayed about censorship and cancel culture, as if they, unlike the left, believed in a free exchange of ideas.

The university refused to back down and Pence was allowed to give his talk, in which he exploited the opportunity to denounce woke culture and defend freedom, although he did not address his advocacy of positions that would deny freedom to the groups mentioned in the editorial. The audience was enthusiastic and, since those in attendance were almost exclusively conservative, the questions were a series of thinly disguised talking points that allowed Pence to appear both reasonable and fair-minded.

It might be useful to consider how the event might have played out had the left not largely boycotted the lecture, but instead had grabbed up a bunch of the tickets to create a more diverse audience. For that, one need look back more than a decade, when a similar controversy yielded a far different outcome.

In September 2007, Iranian President Mahmoud Ahmadinejad was invited by Columbia University to speak at the School of International and Public Affairs annual World Leaders Forum, after which he would take questions from the audience. Unlike Pence, who is supported by roughly half the American population, Ahmadinejad was almost universally reviled, holding views so extreme and with a manner so boorish as to border on caricature.

Protests were vociferous and vitriolic. Jews in particular were incensed Ahmadinejad had insisted Israel should be wiped off the map and that the Holocaust was a myth. Dov Hikind, a New York assemblyman from Brooklyn and an orthodox Jew, compared Ahmadinejad to Hitler. Many Christians were equally appalled. James Gennaro, a New York City councilman, grumbled that Columbia is making a mockery of civilized discourse by allowing this madman to participate. Others pointed out that Iran was supplying weapons to Iraqi insurgents and secretly building nuclear weapons.

Like the administration at Virginia, Columbia refused to back down. The universitys president, Lee Bollinger, chose to moderate the talk himself. But Bollinger had no intention of being foolhardy everyone at Columbia remembered the student takeover in 1968. He decided to abandon good manners and introduce Ahmadinejad as if he were a prosecutor seeking the maximum penalty for a pedophile.

Bollinger, with Ahmadinejad sitting just feet from him, described his invited guest as a petty and cruel dictator and noted, According to Amnesty International, 210 people have been executed in Iran so far this year twenty-one of them on the morning of September 5th alone. This annual total includes at least two children further proof, as Human Rights Watch puts it, that Iran leads the world in executing minors. He ridiculed Ahmadinejads views on the Holocaust as simply ridiculous. Bollinger closed his remarks by saying, I am only a professor who is also a university president, and today I feel all the weight of the modern civilized world yearning to express the revulsion at what you stand for. I only wish I could do better.

To his credit, Ahmadinejad refused to take the bait. He did his best to be charming, or at least disarming. He admitted that the Holocaust had occurred. For a time, it appeared that those who feared giving Ahmadinejad the opportunity to falsify his image had been correct.

But then it was time for questions. Ahmadinejad did his best to duck and dodge past accusations he heard all too often, but then one student asked about the regimes record of executing homosexuals. Ahmadinejad replied, In Iran, we dont have homosexuals, like in your country. ... In Iran, we do not have this phenomenon. I dont know whos told you that we have this.

The audiences reaction was immediate and unmistakable. They laughed! The more Ahmadinejad tried to justify his answer, the more the audience guffawed. And that laughter did more to expose the absurdity and hypocrisy of both Ahmadinejads defense of Irans human rights record and his countrys faux commitment to fairness and common decency than 100 position papers from the State Department or even graphic footage on cable news.

If those who had objected to Pences human rights record and what they see as his faux commitment to fairness and common decency had chosen to attend his talk en masse and asked the same sort of difficult questions, perhaps he would not have left Charlottesville feeling quite so good about himself.

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OPINION: Freedom of speech comes with the responsibility to use it - The Fulcrum

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During the 2016 presidential primaries, then presidential candidates Donald Trump and Senator Marco Rubio exchanged insults, with Trump calling Rubio Little Marco and Rubio commenting on the size of Trumps hands. Recently, this exchange was the basis for a Federal Circuit decision reversing a refusal to register the trademark TRUMP TOO SMALL as an unconstitutional restriction of speech under the First Amendment.

In 2018, Steve Elster applied to register the mark for use on T-shirts and related apparel. As the Federal Circuit recounts, According to Elsters registration request, the phrase he sought to trademark invokes a memorable exchange between President Trump and Senator Marco Rubio . . . and aims to convey[] that some features of President Trump and his policies are diminutive. The Examining Attorney at the United States Patent and Trademark Office denied Mr. Elsters application under Sections 2(a) and 2(c) of the Lanham Act. On appeal to the Trademark Trial and Appeal Board (TTAB), the TTAB affirmed the refusal of the application, relying solely on Section 2(c) of the Lanham Act.

Section 2(c) of the Lanham Act prohibits registration of a trademark that: Consists of or comprises a name, portrait or signature identifying a particular living individual except by his written consent. 15 U.S.C. 1052(c). Section 2(c) does not prohibit all uses of an individuals name in a trademark. Rather, it applies only when: (1) the public would reasonably assume that the goods associated with the mark are connected with the particular individual due to the individuals fame or recognition; or (2) the individual is publicly connected with the business in which the mark is, or will be, used.

There was no dispute that President Trump is sufficiently famous to fall within the protection of Section 2(c) not only because of his political office but also because of his prior celebrity. Elster argued that refusing to register the TRUMP TOO SMALL trademark violated his right to free speech under the First Amendment. The TTAB noted that as an administrative tribunal, it does not have the authority to strike down any statute as unconstitutional, but noted that a constitutional challenge may involve many threshold questions . . . to which the [agency] can apply its expertise, and went on to find that the refusal to register TRUMP TOO SMALL was not unconstitutional.

The TTAB first opined that Section 2(c), like all of Section 2 of the Lanham Act, merely sets forth criteria for obtaining a federal trademark registration. It does not control the use of the trademark. Indeed, one can use a trademark in commerce without obtaining a registration and Elster could do so here even if the registration is denied. Second, the TTAB found that Section 2(c) does not restrict any particular type of speech, but applies in an objective, straightforward way to any proposed mark that consists of or comprises the name of a particular living individual, regardless of the viewpoint conveyed by the proposed mark. Accordingly, the TTAB affirmed the Examiners refusal to register TRUMP TOO SMALL.

On appeal, the Federal Circuit reversed the TTAB, finding that Section 2(c) is unconstitutional as applied to the TRUMP TOO SMALL trademark, while deferring any decision on whether it is unconstitutional in all cases. The Court noted that trademarks can be protected speech and that denying registration, while not prohibiting use of the trademark, chills speech by stripping the mark of the many advantages associated with federal registration. Accordingly, there must be a substantial government interest to justify restricting speech by denying a registration.

The purpose of the Section 2(c) is to protect state law rights of privacy and publicity that individuals have in their names, appearance, and likeness. The Court quickly found that a right of privacy cannot shield a public official from comment or criticism. The Court also questioned whether a political figure maintains a right of publicity at all. At the very least, the political figures right of publicity would not permit a prohibition on the distribution of posters, buttons, apparel, or other materials that express support for or disagreement with the political figure. In short, [a]s a result of the Presidents status as a public official and because Elsters mark communicates his disagreement with and criticism of the then-Presidents approach to governance, the government has no interest in disadvantaging Elsters speech.

As we reported previously, the Supreme Court has found that portions of Section 2(a) of the Lanham Act, which prohibit the registration of immoral, deceptive, or scandalous trademarks and trademarks which may disparage . . . any persons, living or dead are unconstitutional. While this opinion expands the Supreme Courts reasoning to Section 2(c), whether its reasoning applies to trademarks that do not involve political figures or that do not criticize famous individuals remains to be seen. The Federal Circuit noted that it was only asked to analyze Section 2(c) as applied to Elsters mark. But it did go on to note that Section 2(c) may be impermissibly overbroad because it does not leave the USPTO discretion to permit registration for marks that advance First Amendment interests.

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Rights of Privacy and Publicity TOO SMALL to Overcome First Amendment Freedom of Speech - JD Supra

After a speaker this month expressed views that many felt were racist, officials at a small private college have cracked down: From now on, all college sponsored speakers must be approved by the president and other senior administrators.

Saint Vincent College, a Benedictine institution in Latrobe, Pa., announced the new policy this week in a letter from its president, the Rev. Paul Taylor. The goal, according to the announcement, is to make sure that the message to be delivered is not in conflict with the spirit and mission of the college.

The decision comes after David Azerrad, an assistant professor and research fellow at Hillsdale Colleges government school, in Washington, D.C., gave a talk at Saint Vincent titled Black Privilege and Racial Hysteria in Contemporary America. It was part of a program sponsored by the colleges Center for Political and Economic Thought.

Within the first five minutes, Azerrad asserted that Kamala Harris would not be vice president if it were not for her fathers being Jamaican, and that the real color of visible privilege in America today is Black. Hillsdale officials didnt respond to a voicemail seeking comment from Azerrad on Thursday.

Over the past few years, colleges across the country have grappled with what to do when provocative speakers come to campuses often by invitation from faculty members or students. Some officials have disinvited speakers in response to criticism from the campus community.

Other campus leaders have denounced the views of speakers but allowed the events to go ahead citing a commitment to academic freedom and, at public universities, an obligation to comply with the First Amendment. In one recent case, the State University of New York College at Brockport allowed a controversial invited speaker to proceed but moved the event online, citing safety concerns.

But two free-speech experts said Saint Vincent stands out for giving the colleges administration the authority to approve or deny speakers outright. That is extreme, said Alex Morey, director of the individual-rights defense program at the Foundation for Individual Rights in Education, known as FIRE.

Father Taylor sees the new policy as a way to protect the colleges mission.

What this policy does is, it puts first and foremost our mission, first as a liberal-arts university and as a Catholic and Benedictine college, that we respect academic freedom and freedom of speech. But this platform of our college and our mission will not be used for something that is contrary to what we believe, the president said in an interview.

Legally, Saint Vincent is within its right to impose stricter rules for speakers. Many private colleges have their own guidelines for campus visitors and events, and religious colleges like Saint Vincent often go a step further. For example, Brigham Young University, which is affiliated with the Church of Jesus Christ of Latter-day Saints, requires speakers to use clean language.

Saint Vincent, through its status and other policies, has been long been committed to freedom of speech, Morey said.

But Reverend Taylor denied that the new speaker policy violated anyones free speech or academic freedom. Inside the classroom and on campus, students and faculty members are encouraged to engage in discussions, debates, and arguments about any topic, he said.

Every organization has a mission that they abide by, and every one of them does not allow or want someone or something to use that platform for something that is contrary to what they believe in, he said. Thats where the critical divide is.

Jeremy C. Young, senior manager of the free expression and education team for PEN America, a nonprofit working to defend free expression in the United States, believes Saint Vincents leaders are missing the mark.

Its totally understandable where theyre coming from, Young said, given the content of Azerrads speech. But the solution is not to get rid of free expression for every speaker and every group on campus.

The policys application, Young added, seems too broad. Whats a university sponsored speech? he asked.

Father Taylor said he and his cabinet will now be approving speaking events that are open to the public and outward facing in any way. Officials wont be getting involved when, say, guest lecturers visit classes, he said. The new policy concerns public presentations sponsored by the college.

Campus officials have organized virtual listening sessions for students to share thoughts on the policy, the president said, and will hold a campus forum on Friday.

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At This College, the President Will Now Approve Speakers - The Chronicle of Higher Education