How I am ignoring the other statements? CLS v. Martinez is
internally quite consistent; it reasons:
1. The registered student organization program is a limited
public forum, because it provides a form of subsidy to the groups who
participate in the program.
2. In such a limited public forum, the government may impose
reasonable, viewpoint-neutral restrictions, but not viewpoint-based ones.
3. The requirement that student groups take all comers is a
viewpoint-neutral – indeed a content-neutral restrictions.
4. Indeed, the program leaves student groups free to “express
any viewpoint they wish – including a discriminatory one,” which protects “the
freedom to express ‘the thought that we hate.’”
If CLS is viewed as applicable here – if trademark law is viewed
as a limited-public-forum-like subsidy – then it would follow that the
exclusion of “disparaging” marks, if it’s seen as viewpoint-based (and I think
it should be), is unconstitutional.
Now of course some may say that CLS shouldn’t apply. The In re
Tam en banc majority concludes that the trademark system shouldn’t be viewed as
a limited public forum, but that the disparaging mark exclusion should be
viewed as more akin to a direct regulation of speech, and that strict scrutiny
should apply instead. Others conclude that the trademark system shouldn’t be
viewed as a limited public forum, but that the government should be entitled to
choose which trademarks it will support, even in a viewpoint-based way. But if
CLS applies, then it bars viewpoint-discriminatory conditions on trademark
registration, rather than empowering to freely decide which speech to “subvent.”
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Saturday, March 19, 2016 7:29 AM
To: Law Religion & Law List <religionlaw@lists.ucla.edu>
Subject: Re: In re Tam and CLS
I think CLS has something for everyone on this case. We just cannot really
predict with confidence what tack the Court will take. I agree that the court
could decide that disparagement is the sort of viewpoint regulation that it
said was not at stake in CLS. But you cannot ignore all the other statements
and reasoning of the court and think that just one aspect will surely control.
Steve
On Mar 19, 2016, at 10:04 AM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
If CLS is applicable, it would actually cut the other way. The
rationale of the court’s decision is that, though the government must be
viewpoint-neutral in funding student groups, a requirement that groups take all
comers is actually content-neutral: “It does not reflect a judgment by school
officials about the substance of any student group's speech. Nor does it
exclude any would-be groups on the basis of their convictions. Indeed, it does
not regulate expression or belief at all. The policy is ‘directed at the
organization's activities rather than its philosophy.’”
“Although registered student groups must conform their conduct to the Law
School's regulation by dropping access barriers, they may express any viewpoint
they wish—including a discriminatory one. Cf. Rumsfeld v. Forum for Academic
and Institutional Rights, Inc., 547 U.S. 47, 60 (2006) (‘As a general matter,
the Solomon Amendment regulates conduct, not speech. It affects what law
schools must do— afford equal access to military recruiters—not what they may
or may not say.’). Today's decision thus continues this Court's tradition of
"protect[ing] the freedom to express ‘the thought that we hate.'” And of
course the opinion is stressing here that even registered student groups, which
is to say groups that get “what is effectively a state subsidy,” must be free
from viewpoint discrimination.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Saturday, March 19, 2016 4:27 AM
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: In re Tam and CLS
Not really wanting to restart this issue, but in re-reading CLS v. Martinez, I
came across this gem:
"The First Amendment shields CLS against state prohibition of the
organization’s expressive activity, however exclusionary that activity may be.
But CLS enjoys no constitutional right to state subvention of its selectivity.”
One can surely distinguish the cases, but one can also make the argument that
registering a trademark is a benefit that the government can condition on
non-disparagement and that the Slants “enjoy no constitutional right to state
subvention” of its disparaging trademark.
And how often does anyone get to use the word “subvention” anyway?
Steve
--
Prof. Steven D. Jamar
Howard University School of Law
vox: 202-806-8017
fax: 202-806-8567
http://sdjlaw.org<http://sdjlaw.org/>
_______________________________________________
To post, send message to
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org
"Love the pitcher less and the water more.”
Sufi Saying
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
