One Mann’s Assault on the First Amendment Continues

By Robert Lufrano (Rutgers Law Student)

It has been over four years since Dr. Michael E. Mann, climate scientist at Pennsylvania State University, filed an anti-defamation lawsuit against conservative magazine National Review and its columnist Mark Steyn, and public policy think tank Competitive Enterprise Institute (CEI) and its former adjunct fellow Rand Simberg. Yet the D.C. Superior Court has still not decided this case on the merits. The case had been stayed pending an appeal regarding procedural matters with respect to D.C.’s Anti-SLAPP Act, when finally this past December the D.C. Court of Appeals decided to allow the case to proceed and that Mann had offered sufficient evidence to succeed on the merits, and thus dismissed the defendants’ motion.

Mann filed suit in response to online columns published by Steyn and Simberg criticizing Mann and his 1999 “Hockey Stick” graph, which had been heavily promoted by Mann and the IPCC (Intergovernmental Panel on Climate Change) as proof of man-made global warming.

Referring to the so-called “Climategate” scandal of 2009, wherein leaked emails allegedly showed Mann and U.K. researchers attempting to cover-up scientific data that didn’t support Mann’s global warming graph, Simberg wrote an online article for CEI stating that Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in the service of politicized science”, with Simberg playing on the fact that Mann and the infamous child molester Sandusky were both employed at Penn State. Steyn then wrote for National Review that “Michael Mann was the man behind the fraudulent climate-change ‘hockey-stick’ graph, the very ringmaster of the tree-ring circus”, alluding to Mann’s use of tree ring data to support his graph. It is principally these comments that led Mann to file his lawsuit, claiming that they harmed his reputation.

The defendants’ primary contention is that Mann is attempting to silence their views on contentious political issues in violation of their First Amendment rights. The defendants assert that their statements are constitutionally protected statements of opinion that were not made with actual malice or reckless disregard for the truth under NY Times Co. v. Sullivan, and Steyn in particular also insists that his assertions were in fact completely true, i.e. that Mann’s “Hockey Stick” was created with fraudulent data.

Aside from the First Amendment implications, Mann’s lawsuit is troubling in several other respects. As an initial matter, how is the Anti-SLAPP Act doing its job of deterring lawsuits that chill free speech when it takes years to resolve a special motion to dismiss? Moreover, the pleadings evince a rather hypocritical Mann, employing ad hominem attacks and making misrepresentations about his credentials. The complaint repeatedly refers to the defendants as climate change “deniers”, and the original complaint contained multiple false assertions that Mann was a Nobel Peace Prize recipient. This being untrue, Mann eventually had to amend his complaint to “clarify” that he was never in fact awarded the Nobel Prize (though how Mann could be confused on this point in the first place is still unclear). It is also unclear what reputational damage Mann has suffered, as he is still employed at Penn State, and is still being touted as a climate change authority by news outlets.

Finally, even though Mann proclaims to be defending science by initiating his lawsuit, not a single scientist has filed a brief on his behalf. In contrast, climate scientist Dr. Judith Curry has recently filed an amicus brief on behalf of the defendants. The brief is a scathing rebuke of Mann, his research, and his apparent pattern of trying to silence his detractors instead of allowing his research to speak for itself and stand up to scientific scrutiny. Indeed, Mann has also filed an anti-defamation lawsuit in Vancouver against Canadian geographer Dr. Tim Ball after Ball questioned the integrity of Mann’s data. Also of note is that in 2015, Steyn, while waiting for the case to go to trial, released a book entitled A Disgrace to the Profession, The World’s Scientists in Their Own Words on Michael E. Mann, His Hockey Stock, and Their Damage to Science. The book is a compilation of lengthy quotes from climate scientists the world over, criticizing Mann and the legitimacy of his “Hockey Stick”.

Not surprisingly, free-speech advocates are aligned against Mann. Numerous briefs have been filed in support of the defendants by such diverse media and public policy outlets as the Washington Post, the ACLU, Cato Institute, Fox News, NBCUniversal, Time, etc. It is clear that the importance of the free speech issues here have brought together an unusual alliance of climate change skeptics and proponents, scientists, and both conservative and liberal organizations. Should Mann prevail on the merits, it could have a very chilling effect on the free speech rights of news and opinion outlets, especially those which often thrive on provocative and incendiary commentary spanning the entire political spectrum, from Breitbart News to The Huffington Post.

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Proposed Indiana Senate Bill 285 Will Fence In Protesters

By  Timothy McMahon (Rutgers Law Student) 

When a massive crowd of people takes to the streets marching for a cause it is breathtaking to behold, and could have a symbolic effect that can last generations. From the Selma Marches to The Million Woman March, the images and messages that emerged from these demonstrations have left lasting imprints on America’s history. It is natural that when protesters look at the best way to effectuate their message, they turn to these marches as examples and take their message to the streets. We have seen over the last few years activist groups such as  Occupy Wall Street and Black Lives Matter do just that, by taking their fight to the streets. These protesters feel that by blocking traffic they are raising awareness for causes of social justice. Similar to the protesters who marched in those historic marches, today’s protesters hope that by taking to the streets they bring about social change.

Several Republican State Legislatures have introduced bills in 2017 addressing these protesters who spontaneously demonstrate in the middle of streets. My home state of Indiana is one of such states to propose a version of this bill. The proposed bill, Senate Bill 285, states that a public official must after fifteen minutes of receiving news about a road blockage due to protesters blocking the roadway send all available law enforcement to remove the protesters by “any means necessary”. The sponsor of the bill, Senator Tomes, claims that the bill is designed to keep traffic flowing smoothly, keep the roads open for emergency services, and for commerce related reasons. Opponents claim this bill is designed chill political speech and also justifies the use of brutal police tactics. If this proposed bill passes and becomes law, it may be challenged as being unconstitutional.

Time, place, and manner restrictions are constitutional, so long as they are content neutral, narrowly tailored, serve a significant government interest, and it leaves ample alternative channels for communication. Following this guideline, it is likely this proposed Indiana bill will likely pass constitutional muster. First the bill is content neutral, it does not specifically say certain groups or messages can protest in the street and certain groups or messages cannot. Second the bill serves a significant government interest, to promote the free flow of travel and prevent the disruption of emergency services are the stated government interest. The government could also state safety and disturbance of the peace as an interest as well. There have been several incidents that show protesters being mowed down by vehicles and fights erupting that would support a claim that safety and keeping the peace are significant government interests.

This restriction leaves ample alternative channels for communication available to groups who protest. Courts have read alternative channels to mean other things including different channels and mediums of communication. An alternative does not need to be first choice of a way to communicat . In The City of Chicago v. Alexander, the court said that protesters being denied overnight stay at a park could come back the next day to protest, or take the protests to the sidewalks right outside the park, or any number of different things. The proposed bill is designed only to prevent spontaneous protests in the street. Protesters may still take their cause to the local park or to the sidewalk without any quarrel, or as Senator Tomes claims that groups that want to hold a demonstration in the streets should apply for permits in advance in order to so.

While permits requiring advance notice that follow time, place, and manner restrictions are generally deemed constitutional, courts have created a way out for spontaneous demonstrations to circumvent these usual restrictions. A permit or ordinance must allow for some alternative for expression for “fast breaking” events. If there are no alternative form of expression or exception to these permits or ordinances for these fast breaking events, then these notice requirements may place a heavy restriction on freedom of speech.  “Spontaneous expression may be vital to a speaker’s message because a spontaneous event expressing a viewpoint on a topical issue will almost inevitably attract more participants and more press attention, and generate more emotion, than the “same” event 30 days later,” Doyle v. Commissioner, New Hampshire Department of Recourses and Economic Development. A general outright ban on spontaneous demonstrations in public spaces are also deemed to overly infringe on protester’s freedom of speech.

The state will argue that there are plenty of alternative ways to get the message out there including sidewalks and parks. Opponents of the bill will claim that their message losses the same effect by not taking in to the streets. Would the Selma Marches and the other famous marches have had the same social impact as they did if they been force to a park or had to be on the sidewalk? In the protester’s view, blocking traffic is essential for their protests to be effective. That being said the general population has a right to move freely, and police usually do not violate the protester’s first amendment rights by arresting them for impeding others from traveling or entering into public places. Plainly speaking, protesters do not have a first amendment right to block vehicles or pedestrians.

If there is a fatal flaw with this bill, it could be argued that it does not provide an alternative for fast breaking events. If the Indiana Legislature would like this bill not to be struck down, they would be wise to add a sentence or two that would make it clear that the officers are to move the protesters to an appropriate place or another alternative place where they could demonstrate.

This proposed bill would likely satisfy the final requirement, in being narrowly tailored. It does not appear to be overbroad by including more speech than is required to achieve their legitimate government interests.

It is also worth noting that “any means necessary” would not mean that police could use brutal tactics. The police would still be subject to the fourth amendment excessive force laws as they were laid out in Graham v. Connor. In conclusion, this bill is likely to pass intermediate scrutiny for the time, place and manner restrictions. That being said, there are still questions on whether it provides an alternative channel or an exception for spontaneous demonstrations.

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The Lanham Act’s Disparagement Clause is in Trouble

By Jason M. Russell (Rutgers Law Student)

Simon Tam, an Asian-American musician, author, speaker, and political activist, applied to the federal government to register the phrase “THE SLANTS” as a trademark to identify and distinguish his rock band. According to Mr. Tam, he chose this phrase to reclaim a racial stereotype, hoping that his use would minimize its pejorative connotation. But the U.S. Patent and Trademark Office (USPTO) rejected his application, citing Section 2(a) of the Lanham Act, which states that a mark consisting of disparaging matter shall be refused registration. The U.S. Court of Appeals for the Federal Circuit reviewed his appeal en banc and determined that the USPTO impermissibly infringed upon Tam’s right to free speech, and the government subsequently appealed.

The pending case of Lee v. Tam, which was recently heard by the eight Justices of the U.S. Supreme Court on January 18, 2017, raises the question of whether the Lanham Act’s disparagement clause violates the First Amendment. Much of the argument focused on whether a federally registered trademark—defined by Congress as “any word, name or symbol” used by a person to “identify and distinguish his or her goods” and to “indicate the source of the goods”—is capable of representing the expression of an idea worthy of protection from government intrusion.

The fundamental issue at the heart of the case is whether a federally registered trademark is merely a commercial statement designed only to increase the profit of its owner, or is a trademark also capable of something more—a communicative expression intended by its owner to make a noncommercial statement about him or herself and to contribute to the marketplace of ideas.

After listening to the parties’ oral arguments before the Court, it is clear that the government’s restriction on disparaging marks is in serious trouble. The main thrust of the government’s argument is that a trademark is purely commercial speech without an expressive element; and, since the federal trademark registry is akin to a government program, similar to the allocation of subsidies or the distribution of grant monies, the prohibition against disparaging marks is merely a reasonable limit on an applicant’s access to a government benefit rather than a wholesale restriction on private speech.

Right from the start, a number of the Justices were skeptical of the premise of this argument. Justice Kennedy noted that we now live in “a culture in which we have tee shirts and logos and rock bands” that are used in the marketplace to express the owner’s point of view. Justice Breyer went even further, pointedly asking the government what the purpose of the disparagement provision is. Counsel responded that the prohibition protects the free flow of commerce, since disparaging marks can distract the purchasing public from the underlying purpose of the trademark: to identify the source of the particular product, and to distinguish it from its competition. This articulation of the government’s interest, which completely overlooks any expressive, noncommercial element within a trademark, did not seem to satisfy any of the Justices’ free speech concerns.

In addition, Justice Kagan, after conceding that the federal trademark registry could be considered a government program, noted that it is still impermissible for the government to make viewpoint-based distinctions based on what the USPTO examiner finds objectionable. When she asked counsel to explain how Section 2(a) is different from a “fairly classic case of viewpoint discrimination,” he responded that the statute broadly prevents disparagement of all groups, rather than providing protection to certain groups but not others. This exchange underscores a fatal flaw in Section 2(a): even though on its face the statute seems to cast a wide net and provide protection from offense to everyone, in reality it gives the USPTO examiner almost unlimited discretion to review the expressive element of the mark and determine whether a substantial composite of the community will find it offensive. This violates two bedrock principles of the Court’s First Amendment jurisprudence: 1) that the “government may not prohibit the expression of an idea simply because society finds the idea itself disagreeable”; and 2) that the government’s discretion should be limited out of a fear of arbitrary action. At the end of the day, do we really want a government bureaucrat deciding for us what may be offensive?

The government assured the Court in its brief that it is capable of drawing an objective line in the sand as to what is disparaging, and that it can apply this principle in an evenhanded and judicious manner. Many commentators doubt that this is possible. The federal trademark registry is replete with examples of other marks that received clearance, but are arguably more offensive than THE SLANTS, which indicates that the disparaging clause is not enforced in a predictable manner. Regardless, even if the USPTO were capable of objectively enforcing the statute, the question still remains as to whether it is appropriate for the government (and the courts) to act as arbiter for what constitutes an offensive mark.

Notably, both Chief Justice Roberts and Justice Alito signaled deep-seated concerns about the ability of courts to parse out the commercial, non-expressive content of a trademark from the noncommercial, expressive content. Given the Court’s hesitancy in undertaking subjective line-drawing exercises as to what is or is not expressive speech within a trademark, the Court will likely hold that these types of inquiries are best left to the public marketplace of ideas rather than the government or the courts.

If Section 2(a) is struck down, the government argues that the USPTO will be flooded with an overwhelming number of applications for trademarks that contain hurtful or offensive content—the primary fear is that without the ability to reject these disparaging marks, the government will be essentially stamping offensive speech with its imprimatur by registering them. This concern, however, is unwarranted, as those trademarks will be judged by the market—a far more efficient actor than the government. At the end of the day, it is not a very wise business plan for an owner to have his goods or services associated with a controversial or offensive mark.

Interestingly, only four months before hearing Lee v. Tam, the Court declined to hear the Washington Redskins’ appeal of a lower court ruling that canceled the team’s logo and mark under Section 2(a). Given the identical legal questions, the cases seemed tailor-made to be heard together, but the Court chose to hear only Mr. Tam’s challenge, while the Redskins remain in legal limbo awaiting the outcome of this case. The Court’s procedural move here was certainly no accident, and it is a strong signal that the Court will invalidate the disparagement clause. Even though the cases share the same legal question, Mr. Tam and the Washington Redskins could not be more different. His intent behind using THE SLANTS, as a member of the Asian-American community, is to reclaim a negative racial slur, while the Washington Redskins are a corporation that has made billions of dollars using a logo that a substantial composite of the American Indian community finds offensive. Certainly Mr. Tam is a much more palatable party than the Redskins, if the Court were to strike down Section 2(a) of the Lanham Act.

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Friends Don’t Let Friends Share “Fake News”: FTC Cannot Effectively Regulate “Fake News,” So It’s up to Us to Make News True(ish) Again

By Samuel E. Bordoni-Cowley (Rutgers Law Student)

Should we invite the Federal Trade Commission (FTC) to extend its reach in regulating online content in the name of stopping the spread of “fake news”?

Some scholars might say the marketplace of ideas should not be filtered, others that only public discourse will solve the issue, and others yet who would contend the marketplace of ideas occasionally fails and may need regulation to survive “fake news.” The FTC might even envision having for itself having an increased role in saving the online “truth,” but for now the Commission’s potential for regulating “fake news” is limited by its administrative scope and consumer-protection creed.

Assuming that “fake news” has a deleterious effect on the marketplace of ideas in the U.S., but knowing that the FTC has limited power to act, do we really need the FTC to expand its reach or perhaps another company to save us from “fake news”? I think not, because public discussion is a duty of the American citizen. Through participation in public discourse, speech functions to sow democratic principles and lead to the right outcomes and decisions.

So, why is this important?

The issue with “fake news” is generally in its hindrance of the truth, open public discourse, and promotion of irrationality. “Fake news” is now virtually synonymous with political news. However, the digital information people surround themselves with no longer necessarily relies on verifiable, empirical discourse, or sources—discourse on social media of all kinds works quickly, and has been reduced to Tweets and memes.

The differences between political and commercial speech are many, but it is the fact that commercial speech that is also political has become so ubiquitous through social media and other online platforms, which indicates that it might be changing the marketplace of ideas. It is for that reason that the FTC (and FCC) have been increasingly involved in the discussion around “fake news.”

The FTC can and should regulate counterfeit, fraudulent commercial speech. The Commission is ultimately toothless, by virtue of its scope as an agency, against the vast majority of what could be categorized as “fake news”—misinformation and falsehoods, particularly political in nature. But the commercial content that pushes such misinformation and falsehoods into the marketplace, that can sometimes be regulated by the FTC.

The FTC is broadly tasked with preventing business practices that are anticompetitive, deceptive, or unfair, and aims to enhance transparency. Its jurisdiction in this area is, however, limited to commercial speech: i.e., advertising or purely business communications.

Therefore, as several experts have concluded, the FTC must make the argument that “fake news” qualifies as commercial material. Much like the agency’s crackdown on the bogus health claims of the infamous acai-berry, the FTC could be able to regulate some of the more obvious fake political news, so long as the agency can claim that the product—i.e., “counterfeit” American news—was not merely political expression by an American.

The FTC regulates deceptively formatted advertisements (the acai-berry litigation), uses the phrase “fake news” in its policy statements, and enforces truth-in-advertising standards in a digital context. The Commission’s regulations on native advertising for businesses hold that an act or practice is deceptive if there is a material misrepresentation or omission likely to affect and mislead a consumer. Effectively, the FTC regulates deceptive ads that are commercial in nature but which mislead consumers.

The limited scope of the FTC’s reach is inhibiting.

Ultimately, the government can protect us, the people, from harm caused by misleading commercial content. But it cannot protect us from the “harm” in the sharing of, for example, political content that is seemingly legitimate but which spews hyperbole and fiction. The distinction is difficult to make, but the fact is that fake news is muddying the marketplace of ideas. To the degree that is caused or augmented by commercial speech that is misleading or false, the FTC might expand its enforcement efforts.

Regardless, though, Americans must fight misinformation in the same public forums we see the perceived misinformation being spread. If it is true that fake news altered the 2016 Presidential Election, for example, then we must address that with increased public discourse.

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