Supreme Court: Offensive Speech May be Trademarked

Congress’s 70-year-old ban on registering disparaging terms struck down on free-speech grounds

tim armstrongGuest Contributor: Cincinnati Law Professor Tim Armstrong

An important new Supreme Court decision gives private parties the right to receive federal trademark registration of a term that disparages racial or ethnic minority groups. In Matal v. Tam, the Supreme Court ruled that part of the federal trademark statute is unconstitutional to the extent that it forbids federal trademark registration for terms “which may disparage … persons, living or dead … or bring them into contempt, or disrepute.” To forbid registration of disparaging terms as trademarks, the Court unanimously agreed, violates registrants’ First Amendment rights to free expression even of “ideas that offend.”

At the heart of this case is bass player Simon Tam, a member of a quartet of Asian-American musicians who describe their style as “Chinatown dance rock.” The band chose to name itself “The Slants,” in what the Court described as an attempt to “reclaim … a derogatory term for persons of Asian descent …. and drain its denigrating force.” Continue reading “Supreme Court: Offensive Speech May be Trademarked”

I speak Hindi, I am Hindu, and I’m an American: Fighting “Little Things”

Cultural ignorance slows the progress of social justice.

nikkis-photo.jpgGuest Contributor:  Nikita Srivastava, (’19)

As a minority woman in the United States, I am often defined by the color of skin. Although I take pride in my heritage, it is not the only thing that defines who I am. I find myself explaining who I am (or what defines me) more often than my white peers. Not only is this common in social settings, but professional settings as well. What makes matters worse is that my concerns about cultural ignorance are dismissed as “little things.”  Continue reading “I speak Hindi, I am Hindu, and I’m an American: Fighting “Little Things””

I’m Back and I’m Proud

I’ve been away from the Blog for too long.  But for good reason.

The University’s Provost appointed me Interim Dean of the College of Law, which, as you can imagine, meant a raft of new responsibilities for me.  The most gratifying thus far was presiding over commencement.  Cincinnati Law graduated 84 students in May, and we were inspired by speeches from alums Rob Richardson (’05)  of Branstetter, Stranch & Jennings and the Hon. Marilyn Zayas (’97) of Ohio’s First Appellate District Court,  who received the 2017 Nicholas Longworth, III Alumni Achievement Award. I am very proud of our most recent alums and look forward to the significant contributions they will make to the profession and society.

On that note, I recently attended A Celebration of Black Lawyers, hosted by Harvard Law School’s Center on the Legal Profession.  This event honored three giants in the legal field:

  • Ken Chenault, Chairman and Chief Executive Office of American Express Company,
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    Ken and Kathyrn Chenault

    who spoke about the important role corporations have to play in the struggle for social justice;

 

  • Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Education Fund, Inc.,
    Sherrilyn Ifill - Baltimore, MD
    Sherrilyn Ifill

    who challenged all lawyers–irrespective of substantive area of expertise–to take get involved in civil rights matters; and

 

  • The Hon. Rob  Wilkins of the U.S. Court of Appeals for the District of Columbia Circuit,
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    Hon. Robert L. Wilkins

    who inspired attendees to follow his lead in persisting despite the odds. Judge Wilkins was a primary catalyst in making the Smithsonian National Museum of African American History and Culture (NMAAHC) a reality (it also was the site of the Celebration!).

Perhaps most poignant and moving of all was how Ms. Ifill reminded all of us–many of whom were African American attorneys–of the significant role Black lawyers played in moving this nation closer to the promise of equality set forth in our founding documents.

Her words made me remember that I am part of something larger.  A profession with the power to realize the country’s democratic potential.  A tradition of lawyers that pushed this nation to live up to its creed. A social engineer, to use the term coined by the great Charles Hamilton Houston,

charleshouston
Charles Hamilton Houston

architect of the strategy that dismantled de jure segregation.

Envisioning myself as descended from such notables as Thurgood Marshall, Constance Baker Motley,  Ruth Bader Ginsburg, I walked out of the NMAAHC considerably more inspired than when I entered.

 

Bridging Theory and Practice: Law Students Advocate for Women Athletes

Applying knowledge about Title IX to make change

Gender and the Law is one of my favorite courses to teach, but this year’s class has set the bar exceedingly high for years to come. These students have taken what they  learned in the course and chosen to apply it to advocate for women athletes on UC’s campus.  When they found out that during renovation of Fifth Third Arena, the men’s basketball team would play at Northern Kentucky University’s comparable venue but the women would be sent to play at a local high school, they wanted to take action.   Continue reading “Bridging Theory and Practice: Law Students Advocate for Women Athletes”

LGBTQ Rights in Post-Trump America

By Guest Contributor Josh Langdonaaeaaqaaaaaaaahfaaaajgm3ztliyznkltgwodgtndk0ys1hymrhltmwotq1zja3ztg5zq

After eight years of historic progress and support from the Obama Administration in almost all aspects of the law, from removing barriers to marriage equality and military service, to protecting LGBTQ persons at work and in school, we confront a new President, chosen after one of the most bitter and divisive elections in modern history. Does President Trump’s ascension to the White House mean this progress will be reversed or stalled – even if America’s hearts and minds already are evolving in favor of LGBTQ equality? Hard to say, given the mixed messages first from Candidate and now President Trump.  What’s clear is that much work remains ahead.

Continue reading “LGBTQ Rights in Post-Trump America”

#BlackWomenAtWork

Daily microagressions go viral. What’s your story?

It’s hard to pinpoint which incident was worse. Bill O’Reilly admitting that he simply tuned out Rep. Maxine Waters (D-CA) because of her “James Brown wig?” Or, Press Secretary Sean Spicer publicly admonishing American Urban Radio Networks reporter April Ryan for “shaking her head” at a recent press briefing?

Many African American women shook their heads in recognition.  To them, Waters and Ryan merely were experiencing a typical day on the job.  And, a hashtag was born.  Black women made visible the myriad ways race and gender converge in their work lives, manifesting in microaggressions to be ignored and endured. From embodying the stereotypically “angry” Black woman:

to standing in sharp contrast to society’s images of what Black women can do for a living:

I had my own #BlackWomanAtWork incident a few weeks ago.  I was teaching a Family Law class of about 20 students on property division upon divorce.  Suddenly, a student–not enrolled in the class–opened the door and took a step across the threshold. Aware of 21 pairs of eyes staring at her, the young woman asked, “Is this a class?”  I assured her it was and she backed out of the room.  We all were thrown by the intrusion but I couldn’t help wondering if this student would have behaved the same way if one of my white male colleagues had been standing at the lectern.

So what?  I admit that’s a tempting response. After all, I know I’m a professor. Just like the women quoted above know their own accomplishments can’t be diminished by someone’s innocent mistake.

 

But, the reality of the mistake itself is telling. Why is the default nurse “a blonde lady”?  The assumed attorney white?  It reminds me of a conversation a friend once overheard at the gym:  a little girl looked at the sports page of the Washington Post, pointed to a photo of a Black man, and asked: “Daddy, is he a criminal?”

Racial and gendered assumptions run deep in our society.  If we learn anything from Maxine Waters and April Ryan about this ongoing problem, it’s that we must keep calling it out even as we go back to work.

What’s your story?

No Need to Hurry

Filibustering Judge Gorsuch’s nomination is the right thing to do.

New York Senator Chuck Schumer has signaled that Democrats will block Judge Neil Gorsuch from rising to the Supreme Court with the filibuster.

I hope to God he’s serious.

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Jimmy Stewart as Sen. Smith, filibustering in “Mr. Smith Goes to Washington

This is no ordinary nomination; this is not time for business as usual.  To start, FBI director James Comey has testified in front of the House Intelligence Committee (after confidentially briefing members) to inform them and us that his agency is investigating Russian meddling in the 2016 election, including whether members of Trump’s campaign had any links to the Russian government.

That is, to paraphrase former Vice President Joe Biden, a BFD.

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FBI Dir. Comey 

Comey testified that, in going public with this information, he was breaking with agency practice, doing so because it’s in the public interest.  The FBI is looking into misconduct that rises to the level of treason from a presidential campaign.  Every day, more facts unfurl about Trump associates’ shadowy connections to Russia.  Why rush to confirm Gorsuch when questions implicating our very democracy are on the table?

 

Indeed, the Republicans shouldn’t have any problem with waiting.  Majority leader Mitch McConnell took the unprecedented step of refusing even to meet with D.C. Circuit Judge Merrick Garland after President Obama nominated him to fill the seat vacated after Justice Scalia’s death. “Let the people decide,” he said.  Notwithstanding the fact that the people had spoken—twice electing President Obama.   Russian intermeddling in our election raises questions about whether the people’s voices truly were heard in November.

Of course, Mitchell and others will yell that the filibuster and any talk of delay are pure politics, which they (and even Gorsuch) claim have no place on the bench.

Really, guys?

When it appeared that Secretary Clinton was poised to move to the White House, Senators Cruz and McCain said they would block any judge she nominated for the Supreme Court.   Just as was true with respect to Judge Garland, the Republican party drew a line in the sand—irrespective of the nominee’s qualifications or experience, the fact that a Democrat nominated him or her was disqualifying.  How nonpartisan is that?

Let’s face it. The system is broken.  It’s been increasingly partisan for decades—even before fights surrounding Robert Bork (which the Republicans will cite as ground zero).

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Thurgood Marshall at his hearings/AP

Senators delayed the nomination of then-Solicitor General Thurgood Marshall for months.  He endured a grueling set of hearings in which he sparred with members about states’ rights to enact anti-miscegenation laws, the privileges and immunities clause of Article IV of the Constitution, and how Framer Elbridge Gerry understood the Constitution.  Unlike his future colleague Byron White, Marshall’s hearings lasted significantly more than the 90 minutes about which Judge Gorsuch waxed nostalgic.

 

So, where does that leave us?  The concern is that if  Democrats filibuster now, they merely escalate an already harmful ideological arms race. The Republicans will “go nuclear” and eliminate the filibuster, essentially guaranteeing that future nominees will be political hacks instead of the independent jurists we need to uphold the rule of law.

Another possibility is that, in slowing things down, Democrats take the lead in recalibrating the nominations process.  Perhaps they can bring along some moderate Republicans to urge nomination of a moderate, qualified candidate.

Like Merrick Garland.