Free Speech

Federal Circuit holds that first amendment protects right to use disparaging trademarks

/ Free Speech, Intellectual Property, Trademarks

In In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), the Federal Circuit held the government could not withhold trademark registration because the name was disparaging. In re Tam involved a band called The Slants and the Patent and Trademark Office had determined that the name represented a racial slur that was disparaging to people of Asian descent and thus could not be registered as a trademark under the Lanham Act, and its ruling was upheld by the federal District Court. Band leader Simon Shiao Tam had argued that he was trying to reclaim the word just as the previously derogatory word “queer” had been reclaimed by LGBTQ persons. The Federal Circuit reversed the trial court’s ruling, finding Tam’s expressive speech to be protected by the first amendment even if the name was disparaging and its use a violation of the Lanham Act. The court did not address the question of how to deal …

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Publicity rights limited by free speech guarantees

/ Free Speech, Intellectual Property

In the well-known case of Martin Luther King, Jr. Center for Social Change v. American Heritage Products, 296 S.E.2d 697 (Ga. 1982), plaintiffs Coretta Scott King, administrator of Dr. King’s estate and Martin Luther King, Jr. Center for Social Change, and Motown Records, an assignee of the rights to several of Dr. King’s recorded speeches, sued defendants to stop them from manufacturing and selling plastic busts of Dr. Martin Luther King, Jr. The Georgia Supreme Court recognized a “celebrity’s right to the exclusive use of his or her name and likeness” and rejected defendant’s contention that the First Amendment protected the right to manufacture and sell busts of public figures. In contrast, the Sixth Circuit held in ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003), that the First Amendment protected an artist’s right to sell prints of his painting that depicted Tiger Woods’s victory at the 1997 Masters Tournament. In a similar …

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Municipalities cannot regulate political content of signs

/ Free Speech, Zoning

In the 2015 case of Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), the Court struck down a local ordinance that banned “ideological signs” that “communicat[e] a message or ideas.” The ordinance also limited “political signs” to election season and limited the times when plaintiff church was allowed to post “directional signs” bearing the name of the church and the time and location of the next service. The Court noted that content-based restrictions on speech are presumptively unconstitutional and could only be justified if they serve a compelling government interest, a showing that could not be made by the town. Further, the town had ample alternative ways to regulate the placement and size of signs to satisfy public safety and aesthetic concerns.

New Jersey Supreme Court confirms state constitution’s grant of free speech rights to enable a coop owner to disseminate written information to co-owners

/ Condominiums and Homeowners Associations, Consumer Protection, Free Speech, Trespass

While the US Constitution’s free speech provisions in the first amendment apply only to state action, both California and New Jersey have interpreted their state constitutions to grant individuals free speech rights in some cases in relation to private parties. In both states, citizens have the right to distribute leaflets in shopping centers. In Dublirer v. 2000 Linwood Avenue Owners, Inc., 2014 WL 6777311 (N.J. 2014), a resident wanted to run for a seat on the Board of Directors of the coop and sought to distribute materials relevant to his campaign and he was prevented from doing so by the coop board. The Supreme Court of New Jersey held that the coop rule banning soliciting and distributing written materials in the building was unreasonable and a violation of the resident’s state constitutional free speech rights. The ruling reaffirmed and expanded on the rulings in earlier cases that protected free speech rights of owners in common-interest communities …

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