Posted by Eugene Volokh:
UCLA Drops Demand That Online Critic Stop Using "UCLA" in His Web Site:
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250874960
The [1]Foundation for Individual Rights in Education reports:
The University of California, Los Angeles (UCLA) has withdrawn its
unconstitutional demand that a former student take down a website
criticizing the university. UCLA had demanded that Tom Wilde shut
down his private, non-commercial website, ucla-weeding101.info, by
last Monday.... [Y]esterday, only a few hours after FIRE publicized
Wilde�s case, UCLA informed FIRE that its demands against Wilde
were being withdrawn.
�Kudos to UCLA for quickly realizing that the First Amendment
protects criticism of the university -- even online,� FIRE
President Greg Lukianoff said. �UCLA�s prompt and welcome
recognition of the First Amendment freedoms at stake should send a
powerful message to other California public colleges that have made
similar threats, such as Santa Rosa Junior College, that the law
does not support their position.�
Wilde launched the website ucla-weeding101.info last month to argue
that he was �weeded out� of UCLA�s Graduate School of Education for
his dissenting views. On August 6, UCLA Senior Campus Counsel
Patricia M. Jasper sent Wilde a letter arguing that the domain name
constituted �trademark infringement and dilution� and suggested the
website might be a criminal offense under the California Education
Code. Jasper also wrote that UCLA was acting in part to protect its
�reputation� and ordered Wilde to shut down the site by August 17.
FIRE immediately wrote UCLA Chancellor Gene D. Block, pointing out
that no reasonable person would mistake Wilde�s site as being an
official UCLA site or having the college�s endorsement, and that
the First Amendment protects the use of organization names on
�cybergriping� sites. Further, although a disclaimer for such an
obviously unaffiliated site is legally unnecessary, the site now
contains a prominent statement explicitly alerting readers that the
site is �not supported, endorsed, or authorized by UCLA or the
University of California.�
On August 18, Jasper notified FIRE that FIRE�s letter was under
review and that she �anticipate[d] having a fuller response ... in
the very near future.� Yesterday, FIRE took the case public, and
within hours Jasper faxed FIRE to say that, while the university
would appreciate more changes to the site, �[i]n any event, the
University hereby withdraws the demands made upon Mr. Wilde in our
letter to him of August 6, 2009.� ...
My sense is that the original demand was mistaken, for reasons I've
[2]discussed before -- the First Amendment protects people's right to
use other entities' names (certainly including government agencies'
names) in criticizing them.
When the use is commercial and likely to mislead reasonable consumers,
for instance if someone sells T-shirts with the UCLA name in a context
which leads people to falsely believe the sale is authorized by UCLA,
that could indeed be punished. It's possible that such commercial
sales might even be punished if there's a disclaimer announcing that
the seller is entirely independent of the university (though I think
that they shouldn't be, and that people and institutions [3]shouldn't
have a monopoly on the use of their names in merchandising, whether
under the right of publicity for people's names or under trademark law
for institutions and products). But when it's clear that the use is
critical of the institution, and especially in a noncommercial
context, there seems to me no basis for stripping the speech of
constitutional protection.
In any case, while UCLA started out wrong on this, I'm very happy that
it has withdrawn its demand.
Disclosure: I will be a [4]keynote speaker at FIRE's 10th Anniversary
event this October. Also, as I expect most of our readers know, I
teach at UCLA School of Law.
References
1. http://www.thefire.org/article/10993.html
2. http://volokh.com/posts/chain_1106249135.shtml
3. http://www.law.ucla.edu/volokh/speechip.pdf
4. http://www.thefire.org/index.php/article/10415.html/
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