Can the government police speech it thinks is offensive, even when members of the group the government seeks to protect disclaim any offense? Section 2(a) of the Lanham Act allows the government to deny trademark registration to "disparaging" speech. On Wednesday, January 18, the Supreme Court will hear oral argument in Lee v. Tam, a case challenging the constitutionality of this statute.
In Lee, an Asian-American rock band called “The Slants” was denied trademark registration after the Patent and Trademark Office found the trademark disparaging to Asians. A panel of the U.S. Court of Appeals for the Federal Circuit affirmed the decision. But the en banc Federal Circuit—without being asked—decided to vacate that decision and consider whether § 2(a) violates the First Amendment. The full Federal Circuit ultimately reversed the panel decision. The federal government then asked the Supreme Court to weigh in.
Is the Court likely to affirm the Federal Circuit decision striking down the disparagement clause as violative of the First Amendment? And what will be the implications if it does? Megan Brown and Dwayne Sam of Wiley Rein LLP attended the oral arguments and offered their impressions and predictions during this Courthouse Steps Teleforum conference call.
In a unanimous decision, the Supreme Court upheld the U.S. Court of Appeals ruling in favor of the respondent. The respondent, Cori Rigsby, violated the seal requirement of the False Claims Act (FCA) by disclosing her complaint against State Farm, regarding allegedly fraudulent actions taken post-Katrina, before the defendant was served. State Farm argued that the case should have been immediately dismissed due to the procedural violation. The question at hand was whether a claim made under the FCA should be dismissed because the complaining party violated the seal requirement.
Mr. Lawrence Ebner, founder of Capital Appellate Advocacy, author of multiple pieces on the case, and Counsel of Record on the DRI Amicus Brief in support of the petitioner, joined us to discuss the decision and its implications for the future.
Mr. Lawrence Ebner,Founder, Capital Appellate Advocacy
The Federalist Society will host a one hour Teleforum to discuss the recent Supreme Court decision in Samsung v. Apple--a rare Supreme Court design patent case regarding the shape of the face and grid of icons in Apple's iPhones. Trevor Copeland of Brinks Gilson & Lione, Austin and Art Gollwitzer of Michael Best, Chicago will engage over the specific statutory and policy issues in the decision. Prof. Ryan Holte of SIU School of Law will moderate.
Mr. Trevor Copeland,Shareholder, Brinks Gilson & Lione
Mr. Art Gollwitzer, Partner, Michael Best & Friedrich LLP
Moderator: Prof. Ryan Holte,Assistant Professor of Law, SIU School of Law
Can the Patent and Trademark Office (PTO) deny a trademark to a group with an offensive name - or does the First Amendment invalidate the provision of trademark law under which the denial was made? Attorney and legal commentator John Shu explains the dispute between the PTO and an Asian-American rock band seeking to trademark the name “The Slants” in the case Lee v. Tam. The Supreme Court will hear oral argument on January 18th.
Can federal officials be held liable personally for enforcing the “hold until clear” policy following the attacks on 9/11? Jamil Jaffer, Director of the Homeland and National Security Law Program at the Antonin Scalia Law School, explains the dispute in the upcoming Supreme Court Case Ashcroft v. Abbasi. Questions before the Court include whether a group of individuals who were arrested immediately after 9/11 have standing to bring a Bivens claim for violation of their constitutional rights, whether the federal officials enforcing the policy are entitled to qualified immunity, and whether the officials acted based on racial discrimination or a concern for national security. The Supreme Court will hear oral argument on January 18th.