Court case

The Supreme Court extended trademark protection to words and names that may be offensive, ruling June 19 that the 1st Amendment right to free speech allows an Asian American band to call itself the Slants. The unanimous decision will also likely preserve the trademarked and controversial name of the Redskins, Washington’s pro-football team.

In recent years, such trademarked names have come under attack as racially offensive. But in June 19’s decision, the high court struck down part of a 1946 federal law that barred trademarks that may “disparage” people or groups. The justices said this provision violates “a bedrock 1st Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend,” said Justice Samuel A. Alito Jr. He said trademarks are “private speech,” not the government speaking. And as such, the law may not punish words or expressions simply because they are offensive. “We have said time and time again that the ‘public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,’” Justice Alito said in the case of Matal vs Tam.

The Supreme Court struck down a North Carolina law that bars convicted sex offenders from Facebook, Twitter and other popular sites. The justices ruled unanimously in favor of North Carolina resident Lester Packingham Jr.

His Facebook boast about beating a traffic ticket led to his conviction for violating a 2008 law aimed at keeping sex offenders off internet sites children might use. The court rejected the state’s argument that the law deals with the virtual world in the same way that states keep sex offenders out of playgrounds and other places children visit. “In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” Justice Anthony Kennedy wrote in his majority opinion.

In a very short one page decision, the US Court of Appeals rejected the requests filed by public interest groups to stay the effect of the Federal Communications Commission’s decision to reinstate the UHF discount. For the foreseeable future, this decision will free many broadcast television groups to acquire more television stations as UHF stations (which most TV stations now are) count for only half their audience reach in assessing compliance with the 39% limit on the national audience share that any TV owner can have.

While, contrary to some press reports, this does not signal the Court’s final approval of the FCC’s decision to reinstate the discount, it does suggest the direction which the Court is likely to take in its assessment of this Commission decision. This decision does not end the case. The public interest groups can continue to pursue their appeal though full briefing and oral argument and a full court decision. However, the rejection of the stay certainly increases the odds that the FCC will ultimately prevail in its defense of the reinstatement of the UHF discount.

Washington (DC) was quick to respond to the court decision not to block the Federal Communications Commission's reimposition of the UHF discount, at least while it decides a court challenge to that decision under FCC chairman Ajit Pai. The decision allows deals like the Sinclair-Tribune merger to proceed, which without the discount would have exceeded the FCC's 39% cap on national audience reach.

"The FCC’s order eliminating the UHF discount [voted last fall by a Democratic majority and against the Republicans' dissent] was made without a comprehensive review of broadcast media ownership rules. [The National Association of Broadcasters] supports the Court’s decision denying the stay request.” Chairman Pai had said the discount decision by the Democrats was reversed because it did not also include considering the impact on the 39% cap. “The UHF discount has long outlived its usefulness,” said former FCC chairman Michael Copps, currently a special adviser to Common Cause. “Reinstating it was a huge, unwarranted gift to Big Broadcast. So it is disappointing that the court did not rein in the broadcast-friendly majority at the FCC. We remain committed to halting the wave of media consolidation the FCC majority has sought to unleash.”

The US Court of Appeals for the DC Circuit denied the emergency stay motion filed by public interest groups that sought to prevent the Federal Communications Commission from implementing its decision to reinstate the so-called UHF discount that the groups claim will “make it easier for the nation’s largest television ownership groups to acquire additional stations, and crowd out diverse and local voices.” A stay would have prevented the UHF discount from going into effect while the court hears the case on its merits. Restoring the UHF discount to its national ownership rule, in effect, raises the limit on household coverage of TV station groups from 39% to 78%.

The decision is good news for Sinclair Broadcast Group, which needs it to implement its proposed agreement to buy Tribune Media for $3.9 billion and assumption of debt. That deal would increase Sinclair's household reach to 72%. The FCC had urged the court to deny the stay, saying the public interest groups’ request fell "far short" of meeting the criteria for a stay.

[Commentary] My cousin Charlie is serving time in an upstate New York prison. On June 13, a federal appeals court struck down several provisions in the Federal Communications Commission’s recent decisions to cap the cost of prison- and jail-phone calls. This ruling is a real blow to my family and many others like mine across the country. It’s also a huge step backward.

In late 2015, the FCC voted to reduce the steep cost of prison-phone calls charged to incarcerated people and their families. Many inmates and their families had spent years fighting to cap these calls, which can run to more than a dollar per minute. When the FCC voted to implement the caps I felt a sense of relief knowing that Charlie would be able to afford to call my grandmother on a more regular basis without worrying that he’d deplete his commissary on just phone calls. But soon after these rules were adopted the prison-phone industry sued the agency. In February 2017, Donald Trump’s newly appointed FCC chairman, Ajit Pai, said the agency’s lawyers wouldn’t defend key aspects of these rules in court — paving the way for Tuesday’s decision.

[Commentary] On June 12, the 9th Circuit became the latest court to block President Donald Trump's revised travel ban, his second attempt to limit travel from six majority Muslim nations. The decision was not a surprise, as the Trump administration has not had much luck in the courtroom. But its timing – just after former FBI director James Comey testified before Congress and just before Attorney General Jeff Sessions does – reveals that even in the Trump era, there are places where words still matter.

Since Trump launched his presidential bid two years ago, the power of words and facts has been in doubt. As candidate and now president, Trump has lavished Americans with promises that he immediately broke. He has spread lies and conspiracies that are breathtaking in their obvious falseness. He has hurled accusations, threats and slurs that would have been unimaginable for any presidential candidate in the last several decades. And despite – or maybe because – of it all, he won the presidency. So Americans could be forgiven for thinking we now live in a world where facts, promises and words no longer matter, where the president can say whatever he likes without consequences. Only it turns out, there are still some situations where words matter a great deal.

[She is an assistant professor at the Miller Center of Public Affairs and a research associate at the US Studies Centre at the University of Sydney.]

US District Judge Robert Scola ruled that grocery chain Winn-Dixie Stores must make its website accessible to the blind, following an unprecedented trial over a gray area of accessibility law.

The decision adds momentum to a push by plaintiffs’ lawyers and disability-rights groups to make all consumer websites accessible to the blind and hearing-impaired. Uncertainty in the federal Americans with Disabilities Act and a lack of Justice Department guidance has created widespread confusion over whether websites must meet the same stringent accessibility standards as stores do. Plaintiffs’ lawyers have latched on to the ambiguity to launch hundreds of website accessibility lawsuits, most of which privately settle. The latest ruling “is definitely a game-changer,” said Minh Vu, a partner at Seyfarth Shaw LLP who represents companies facing accessibility claims and is not involved in the case. While the decision is only immediately applicable to Winn-Dixie, Ms. Vu said, it sends a signal to other companies that “there’s a very real possibility a judge could find this way.”

Today’s DC Circuit decision is deeply disappointing, not just for me and the many advocates who have fought for more than a decade to bring about much needed reform in the inmate calling services regime...it is a sad day for the more than 2.7 million children in this country with at least one incarcerated parent. But the families who have experienced the pain, anguish and financial burden of trying to communicate with a loved one in jail or prison, are still counting on us, so we will press on.

I remain committed to doing everything I can from working with my colleagues at the Commission, to supporting the efforts of Congress and those in the states to bring relief to millions who continue to suffer from the greatest form of regulatory injustice I have seen in my 18 years as a regulator in the communications space.

[Commentary] The Supreme Court recently agreed to hear Carpenter v. United States, a case on whether the Fourth Amendment protects historical cell-site records. In this post, I want to focus on a small but potentially important part of the Carpenter litigation: How should an originalist Justice vote in the case?

There are many different flavors of originalism, of course, and originalist arguments often can be used to argue for different outcomes. But in this post I want to discuss one originalist argument that I think is significant. Let’s start with the obvious: The Framers could not have imagined a world of cell-site records. And the original public meaning of the Fourth Amendment is open to a wide range of interpretations at different levels of generality. With that said, the text of the Fourth Amendment does have an important clue about what the Fourth Amendment was originally understood to mean that might be important to the Carpenter case.

[Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School]