Articles Posted in Constitutional Law

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The Supreme Court recently reviewed Matal, Interim Director, United States Patent and Trademark Office v. Tam (Matal v. Tam), which deals with trademark laws and what can be trademarked.  In fact, before the case reached the Supreme Court, we have previously discussed how much is unsettled in this area of trademark law. With this new decision, much of the law should be clearer with regards to what can be officially trademarked.

What are the case facts?

A rock group chose the band name “The Slants” because they wanted to “dilute the term’s denigrating force as a derogatory term for Asians.” When the band tried to trademark this name with the United States Patent and Trademark Office the application for registration was denied. The government agency denied the application because it was against 15 U.S.C. § 1052(a), also known as the Lanham Act, which prohibits the registration of any trademark that may disparage or bring into contempt any persons living or dead. The lead singer of the rock group, Simon Tam, challenged this denial initially through the administrative appeal process, which did not bring him any result. Then, Simon Tang brought his case to federal court. The federal court decided that the disparagement clause in the Lanham Act was unconstitutional because it violated the First Amendment’s Free Speech Clause. This decision was then appealed to the United States Supreme Court.

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The United States Supreme Court has accepted a new case that implicates cell-phone location privacy. The case of Carpenter v. United States was decided by the Sixth Circuit and now the Supreme Court will issue a decision in the future as to whether the lower court’s decision was correct. The main issue in this case is that the court will be deciding whether or not the warrantless search and seizure of historical cell phone records revealing the location and movements of a cell phone user over the course of a 127-day period is permitted by the Fourth Amendment.  In general, the Fourth Amendment protects against unreasonable searches and seizures. It also implicates the laws regarding search warrants, wiretaps, other forms of surveillance and is central to privacy laws.

What are the case facts?

In 2011, four men were arrested because they were suspected of committing a string of armed robberies at T-Mobile and Radio Shack in the Detroit area. One of the four men confessed to the crimes and told the police that a shifting group of 15 other men served as getaway drivers and lookouts. The one man who confessed gave his phone number along with the phone numbers of some of the other participants to the FBI. The FBI then reviewed the call records of the man who confessed and were able to identify the phone numbers of others that he had called around the time of the robberies.

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Following from libel proof individuals to the realm of Twitter, and the “Wild-West” approach towards online statements, comes an interesting idea.  It is given that most people will communicate anonymously on the web.  So, if a person is a victim of libel, then how can he/she recover? The online service provider technically didn’t publish it, but only acted as the forum. The person who published the statement cannot be easily found because the statement was posted under a pseudonym.  So, what if the online service provider could be forced to give up identifying information (e.g., name, address, telephone, email, IP address) of the commenting individual? How much is that anonymity worth? Is there a way to actually engage in defamation and get away with it?

How does anonymity make things harder?

Naturally, an unknown person is difficult to sue in court.  The amount of damages he or she could pay is difficult to ascertain. While there are rules allowing a lawsuit without knowing the individual’s identity­­ (which is common in some cases), however, it adds the difficulty in discovering the identity of the “Doe Defendants.”

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On the Internet, individuals can go out and make attempts to rib each other, or to mock certain celebrities or infamous individuals. This opens the realm of libel and slander laws to expand towards online activities. Yet, depending on the person’s history, defamation may be borderline impossible.  If defamation is harm to one’s reputation, then theoretically it should be impossible to harm an irredeemable reputation.  This idea is a concept known as being libel proof — i.e., a person who cannot be defamed any longer.  So, can a completely libel-proof person exist? How could someone argue the individual is libel proof? How might this affect online communications?

What is libel proof?

Libel proof means, quite simply, that a person cannot be defamed any further.  Generally, to even satisfy libel, it would have to be an unprivileged false written statement that was published towards third parties (compared to slander, which is an unprivileged false oral statement that was published towards third parties).  Even then, defamatory statements are judged differently to protect free speech interests.

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This month, we’re looking at various constitutional issues and tangential actions. Of these, there’s a recent hot-button issue regarding the purpose of “freedom of speech” online. From fake news to political speech on websites, the notion of “what is allowed” and “what should be allowed” is still raised by people.  So, what can a website do to maintain the balance between free speech rights and acceptable community standards? Is there any responsibility to allow negative views? What is the risk, if any, towards censorship?

Freedom of speech online

In the wake of 2016, there’s a new question of online service providers that if they allow people to express themselves then they should either act as a gate keeper or grant carte blanche to all users.  Most notably, there’s been the Facebook “fake news” complaints, as well as the actions of a Reddit executive towards supporters of Donald Trump. In the case of Facebook, there were both complaints that it was discriminatory not showing stories from every end of the political spectrum, and negligent that it was not taking action to curtail “fake news” and their influences.  For Reddit, an executive had made edits to statements by Trump supporters to change comments critical of him to individuals that were managing the Reddit group.

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In general, Section 230 of the Communications Decency Act is not only one for defamation, but entails a few exceptions where liability can be imposed on an interactive computer service (e.g., Facebook, Twitter, Tumblr).  So, there are situations where an online business may be held responsible for another individual’s actions.  How can we know whether we will be held liable for a third party’s actions?  How can we avoid potential liabilities?

What can an interactive computer service be held liable for?

From a practical perspective, Section 230 is not an absolute shield for interactive computer services.  There are certain cases where an exception has been applied by the courts.  First, there is an exception for certain types of information.  Specifically, there is an exception for intellectual property.  For example, Section 230(e) determines the effect on other laws, including, an explicit omission of coverage for intellectual property protections.  In essence, liability for defamation may not carry over, but liability for any copyright infringement may carry over, as well as any issue of criminal law, such as obscenities.  Similarly, this can be demonstrated in Gucci America Inc. v. Hall & Associates, where the court determined, from the plain meaning of the statute, that it would not bar plaintiff’s trademark infringement claims against defendants.

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In a situation where an online forum allows creation of profiles with commenting capabilities, a user may take the initiative to defame an individual personally or professionally.  The user may perform illegal actions using the online forum’s website, and in attempting to retrieve damages he/she has suffered, the defamed individual sues the online forum for providing a platform for defamation.  However, Congress has provided an exception towards interactive computer services through Section 230 of the Communications Decency Act (CDA).  What does Section 230 of the CDA do?  What can you do, as an individual, to recover from defamatory material?

What is Section 230 of the CDA?

It’s a sub-part of a federal statute that essentially dictates that an online forum (e.g., Facebook, Twitter, Tumblr) is not liable as a publisher or speaker of online defamatory comments made by its users.  For example, if a defamatory comment was posted on Facebook, then Facebook would not be liable for the defamation.  Essentially, this would protect a website from anything that its users would publish.  This is not necessarily just towards defamatory content, although, it could be expanded to “any information” provided by an entity or person using the interactive computer service’s platform. There are, however, exceptions to this broad liability, as we’ll discuss in future blogs.  Also, the exact nature of a “publisher” is still unclear.  in general, there is a difference between a publisher, which initially produces the comment, and a distributor, which is not covered, that repeats the comment.

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Trademarks are a vital part of how your business is branded and how you appeal to clients and consumers.  What about those trademarks that push the boundaries on what is socially acceptable?  Generally, the government may not protect those marks that are beyond what is socially acceptable.  What is socially acceptable now?  Can the same standards apply and restrict what you can trademark?  To what extent can you push the boundaries in your branding?

How did the court rule in In Re Tam?

In recent times, the United States Patent and Trademark Office (USPTO) has ceded the restrictions on demeaning and offensive marks.  This is in response to the recent “Slants” case, where Simon Tam, a musician, filed a trademark application for his band’s name “The Slants.”  His trademark application was then denied under Section 2(a) of the Lanham Act.  This section prohibits the use of immoral, deceptive, or scandalous marks that may disparage living or dead people.  This section is infamous for the reason why the Washington Redskins trademark was cancelled.  However, Mr. Tam contested the refusal of his trademark, claiming that he wanted to take back the word “Slants” for his band, resting his argument on the First Amendment.  In doing so, through a long legal battle, the Federal Circuit eventually found for Tam, in an en banc hearing, stating that Section 2(a) violated his First Amendment right.  Furthermore, while the ruling had only applied to the disparaging part of the section, the USPTO ceded that the “scandalous and immoral” aspects of the legislation were likely to be unenforceable for similar reasons.

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It is common knowledge that travelers have to take their laptop out of their suitcase upon arrival at airports.  However, not all people know the extent to which electronic devices can be confiscated and searched at the borders whether the traveler is a United States citizen or not.

Why and when can customs officials search your electronic device?

Once electronic devices enter the United States, the Fourth Amendment protects against unreasonable searches and seizures.  However, there is an exception to the Fourth Amendment protection at the borders.  In United States v. Ickles, the court confirmed that customs officials are allowed to search any cargo at the borders. In this case, a search of a vehicle’s cargo revealed a videotape focusing excessively on a young ball boy at a tennis match. A more thorough search uncovered drug paraphernalia, pornographic photographs, computer, and computer discs. The computer was confiscated after the defendant was arrested and searched, revealing child pornography. The defendant requested that the electronic evidence be suppressed claiming that the warrantless search of his electronic devices was protected by his First and Fourth Amendment rights. The court ruled that the search was justified because the border search doctrine indicates that reasonable suspicion and probable cause can be justification for searches without a warrant in order to protect against criminal activity. The First Amendment claim was ruled to be invalid as well because the content of a computer may be searched regardless of how expressive the discovered material may be in order to protect national interests.  The most recent case on this topic was United States v. Kim, which was heard and decided this year. This case was about a foreign national leaving the United States whose electronic devices were searched at the border. The search of his computer was found unlawful because although he may have committed a crime in the past, however, the crime had already occurred, and there was no reasonable suspicion or probable cause to search for imminent criminal activity.

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During the course of history, the United States Constitution has been amended in order to achieve the best interests of the nation and citizens. However, technological advancements have posed as obstacles to the changes as internet and human rights have recently become issues.

What is the relation between the Internet and Human Rights?

As of now, approximately 40% of the world’s population has access to the Internet. Because of its extensive reach, the Internet has become a basic component of human life. It encompasses an individual’s freedom of expression, freedom of association, privacy, and other fundamental factors. Civil liberty and human right groups have expressed their concerns regarding the increase in government’s control and power. For example, on April 21, 2015, Senate Bill 1035 was introduced, which seeks to reauthorize Section 215 of the Patriot Act for five additional years. This means that there would be continued data collection and surveillance programs. As such, groups like Human Rights Watch have expressed their concern towards NSA’s violation of privacy rights.