As noted in my last post, one of the most quoted lines in copyright law is from Justice Holmes's 1903 opinion in Bleistein: "It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations." This aesthetic neutrality principle has found purchase far beyond copyright law. But in a compelling new article, Aesthetic Judgment in Law, Professor Brian Soucek challenges this dogma: "Almost no one thinks the government should decide what counts as art or what has aesthetic value. But the government often does so, and often, it should." Soucek's article may have flown under the radar for most IP scholars because he does not typically focus on copyright law, but it is well worth a look.
Showing posts with label 1st_Amendment. Show all posts
Showing posts with label 1st_Amendment. Show all posts
Thursday, May 24, 2018
Wednesday, April 4, 2018
Tun-Jen Chiang: Can Patents Restrict Free Speech?
Guest post by Jason Reinecke, a 3L at Stanford Law School whose work has been previously featured on this blog.
Scholars have long argued that copyright and trademark law have the potential to violate the First Amendment right to free speech. But in Patents and Free Speech (forthcoming in the Georgetown Law Journal), Professor Tun-Jen Chiang explains that patents can similarly restrict free speech, and that they pose an even greater threat to speech than copyrights and trademarks because patent law lacks the doctrinal safeguards that have developed in that area.
Professor Chiang convincingly argues that patents frequently violate the First Amendment and provides numerous examples of patents that could restrict speech. For example, he uncovered one patent (U.S. Patent No. 6,311,211) claiming a “method of operating an advocacy network” by “sending an advocacy message” to various users. He argues that such “advocacy emails are core political speech that the First Amendment is supposed to protect. A statute or regulation that prohibited groups from sending advocacy emails would be a blatant First Amendment violation.”
Perhaps the strongest counterargument to the conclusion that patents often violate free speech is that private enforcement of property rights is generally not subject to First Amendment scrutiny, because the First Amendment only applies to acts of the government, not private individuals. Although Professor Chiang has previously concluded that this argument largely justifies copyright law’s exemption from the First Amendment, he does not come to the same conclusion for patent law for two reasons.
Scholars have long argued that copyright and trademark law have the potential to violate the First Amendment right to free speech. But in Patents and Free Speech (forthcoming in the Georgetown Law Journal), Professor Tun-Jen Chiang explains that patents can similarly restrict free speech, and that they pose an even greater threat to speech than copyrights and trademarks because patent law lacks the doctrinal safeguards that have developed in that area.
Professor Chiang convincingly argues that patents frequently violate the First Amendment and provides numerous examples of patents that could restrict speech. For example, he uncovered one patent (U.S. Patent No. 6,311,211) claiming a “method of operating an advocacy network” by “sending an advocacy message” to various users. He argues that such “advocacy emails are core political speech that the First Amendment is supposed to protect. A statute or regulation that prohibited groups from sending advocacy emails would be a blatant First Amendment violation.”
Perhaps the strongest counterargument to the conclusion that patents often violate free speech is that private enforcement of property rights is generally not subject to First Amendment scrutiny, because the First Amendment only applies to acts of the government, not private individuals. Although Professor Chiang has previously concluded that this argument largely justifies copyright law’s exemption from the First Amendment, he does not come to the same conclusion for patent law for two reasons.
Tuesday, December 19, 2017
How Do We Know What's Government Speech? Ask the Listeners (with Daniel Hemel)
Note: This post is co-authored with Daniel Hemel, an assistant professor of law at the University of Chicago Law School, and cross-posted at Whatever Source Derived. Follow him on Twitter: @DanielJHemel. This project may be of particular interest to the many Written Description readers who followed Matal v. Tam and its recent follow-up, In re Brunetti.
The distinction between private expression and government speech is fundamental to First Amendment jurisprudence. As the Supreme Court has held repeatedly, the government must be viewpoint-neutral when it regulates private expression, but not when it engages in speech of its own. For example, a public school cannot prohibit students from expressing anti-war views, but the government is free to propagate its own messages in support of a war effort without any need to simultaneously promote pacifism. Yet despite the doctrinal significance of the distinction between private expression and government speech, the line that separates these two categories is often quite fuzzy. A private billboard is clearly private expression, and the Lincoln Memorial is paradigmatic government speech, but what about a temporary privately donated exhibit in a state capitol? Privately produced visitors’ guides at a state highway rest area? A state university name and logo on a student group’s T-shirt? These are a few of the scenarios federal courts have wrestled with in recent cases.
To identify government speech in close cases, the Supreme Court has placed increasing emphasis on whether members of the public reasonably perceive the relevant expression to be private or government speech. As explained below, we think this turn toward public perception is a welcome development. But the Court has so far failed to develop a reliable method for determining how ordinary citizens distinguish between private and government messages.
The Court’s three most recent government speech decisions are illustrative. In the 2009 case Pleasant Grove City v. Summum, the Court said that there was “little chance” that observers would think that monuments in a public park were anything except government speech, even when those monuments were designed and donated by private organizations. Six years later, in Walker v. Texas Division, Sons of Confederate Veterans, the justices split 5–4 as to whether specialty license plate designs submitted by private organizations constituted government speech, with the majority asserting that members of the public perceive these designs to come from the government and the dissent insisting that members of the public hold the opposite view. And this past term, in Matal v. Tam, the Court confidently concluded that members of the public do not perceive federal trademark registration to be government speech. In none of these cases did the justices or the parties bring to bear any evidence as to how members of the public actually perceive the expression in question.
In an article forthcoming in the Supreme Court Review, we begin to fill that empirical void. We presented a variety of speech scenarios to a nationally representative sample of more than 1200 respondents and asked the respondents to assess whether the speech in question was the government’s. Some of the speculative claims made by the justices in recent government speech cases are borne out by our survey: for example, we find that members of the public do routinely interpret monuments on government land as conveying a message on the government’s behalf. In other respects, however, the justices’ speculation proves less accurate: for instance, while the Court in Tam says that it is “far-fetched” to suggest that “the federal registration of a trademark makes the mark government speech,” we find that nearly half of respondents hold this “far-fetched” view. (This does not imply that Tam was wrong—just that the question of whether members of the public perceive federal trademark registration to be government speech is much closer than the Court suggests.)
The distinction between private expression and government speech is fundamental to First Amendment jurisprudence. As the Supreme Court has held repeatedly, the government must be viewpoint-neutral when it regulates private expression, but not when it engages in speech of its own. For example, a public school cannot prohibit students from expressing anti-war views, but the government is free to propagate its own messages in support of a war effort without any need to simultaneously promote pacifism. Yet despite the doctrinal significance of the distinction between private expression and government speech, the line that separates these two categories is often quite fuzzy. A private billboard is clearly private expression, and the Lincoln Memorial is paradigmatic government speech, but what about a temporary privately donated exhibit in a state capitol? Privately produced visitors’ guides at a state highway rest area? A state university name and logo on a student group’s T-shirt? These are a few of the scenarios federal courts have wrestled with in recent cases.
To identify government speech in close cases, the Supreme Court has placed increasing emphasis on whether members of the public reasonably perceive the relevant expression to be private or government speech. As explained below, we think this turn toward public perception is a welcome development. But the Court has so far failed to develop a reliable method for determining how ordinary citizens distinguish between private and government messages.
The Court’s three most recent government speech decisions are illustrative. In the 2009 case Pleasant Grove City v. Summum, the Court said that there was “little chance” that observers would think that monuments in a public park were anything except government speech, even when those monuments were designed and donated by private organizations. Six years later, in Walker v. Texas Division, Sons of Confederate Veterans, the justices split 5–4 as to whether specialty license plate designs submitted by private organizations constituted government speech, with the majority asserting that members of the public perceive these designs to come from the government and the dissent insisting that members of the public hold the opposite view. And this past term, in Matal v. Tam, the Court confidently concluded that members of the public do not perceive federal trademark registration to be government speech. In none of these cases did the justices or the parties bring to bear any evidence as to how members of the public actually perceive the expression in question.
In an article forthcoming in the Supreme Court Review, we begin to fill that empirical void. We presented a variety of speech scenarios to a nationally representative sample of more than 1200 respondents and asked the respondents to assess whether the speech in question was the government’s. Some of the speculative claims made by the justices in recent government speech cases are borne out by our survey: for example, we find that members of the public do routinely interpret monuments on government land as conveying a message on the government’s behalf. In other respects, however, the justices’ speculation proves less accurate: for instance, while the Court in Tam says that it is “far-fetched” to suggest that “the federal registration of a trademark makes the mark government speech,” we find that nearly half of respondents hold this “far-fetched” view. (This does not imply that Tam was wrong—just that the question of whether members of the public perceive federal trademark registration to be government speech is much closer than the Court suggests.)
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