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Jonathan Turley

Supreme Court Rules Overwhelmingly To Strike Down 'Disparagement Clause' Used To Bar Offensive Trademarks

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The U.S. Supreme Court handed down a major victory for free speech on Monday in striking down a provision of the Lanham Act that barred registration for “disparaging” trademarks.  The decision came in Matal v. Tam, a case that we have been following. I have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name. As predicted, the ruling answered  the question raised in the prior column in controversies like the denying of trademark protection to the Washington Redskins.  The decision is good news for Washington’s NFL team, which lost its trademark because its name is disparaging to Native Americans.

Tam is the “front man” for the Asian-American rock band The Slants and, in 2010, filed an application seeking to register the mark THE SLANTS.  Tam’s group called itself the Slants because it wanted to “reclaim” and “take ownership” of stereotypes about Asians.

The Lanham Act provision, known as the “disparagement clause,” bans the registration of a trademark that may disparage “persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  I have been highly critical of the provision for years in both columns and testimony before Congress.  Now it is gone but I remain perplexed how Congress failed to act on the matter to protect free speech for so many years.  One obvious reason is that many legislators lined up praising the denial of trademarks as entirely proper.

House Minority Leader Nancy Pelosi celebrated the denial of the trademark, which clearly contravened free speech protections.  Sen. Harry Reid not only praised the action but predicted that the Redskins name would be gone within three years. That was in 2014.  Democratic Senator Maria Cantwell said, “We’re so excited to know that finally people are recognizing that this issue can no longer be a business case for the NFL to use this patent.”
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Berkeley Cancels Coulter Speech . . . Coulter Vows To Defy University

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We have been discussing the erosion of free speech on our campuses across the country through speech codes and increasingly violent protests. Conservative speakers are now routined denied the opportunity to speak on campuses by university officials who cite security concerns or by mob action preventing events from occurring.  The latest example  is Ann Coulter whose speech was cancelled at the last minute by the university even though she agreed to additional conditions set by officials.  Coulter however pledges to show up to speak regardless of the decision.  That could produce a confrontation with the university in its continued failure to protect free speech on its campus.

We have been discussing the rising intolerance and violence on college campuses, particularly against conservative speakers. (Here and here and here and here). Berkeley has been the focus of much concern over mob rule on our campuses as violent protesters have succeeded in silencing speakers.  Both students and some faculty have maintained the position that they have a right to silence those with whom they disagree and even student newspapers have declared opposing speech to be outside of the protections of free speech.  At another University of California campus, professors actually rallied around a professor who physically assaulted pro-life advocates and tore down their display.

Coulter has a legitimate grievance with Berkeley and, even if they disagree with her conservative views, both professors and students should be defending her right to speak and the right of others to hear her.  A college Republican group invited Coulter to speak but university officials declared that her appearance on campus was too dangerous in light of past protests.  That is yielding to the heckler’s veto.  The university is rewarding the mob by barring any speakers with whom they may disagree.
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Protesters Succeed In Preventing Conservative Speakers From Appearing At The University of California At Davis

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We have been discussing the largely successful efforts by students and faculty to prevent certain conservative speakers like Milo Yiannopoulos from being able to speak on campuses. The latest such example is University of California at Davis where protesters succeeded in preventing fellow students and faculty from hearing Yiannopoulos. There is one promising element to the story however. Unlike school administrators who have either supported or yielded to the “heckler’s veto,” Interim Chancellor Ralph Hexter denounced the effort to not only silence an opposing voice but to deny the right of others to hear that voice on campus. While the school professes “let there be light” on its seal, the school is now cloaked in a forced silence after the ignoble victory of protesters in curtailing the exercise of free speech.

Protesters blocked efforts to have Yiannopoulos and controversial pharmaceutical executive Martin Shkreli speak on campus. Screaming “shut it down,” the protesters threatened the safety of organizers and attendees, according to the sponsors who finally cancelled the event.

I have been a critic of the erosion of free speech values on our college and university campusesAs discussed recently, Yiannopoulous has been the target of some of the most aggressive efforts to silence certain speakers and prevent other students from hearing opposing views.
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Washington Post Issues Correction To 'Fake News' Story

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The Washington Post has been under fire for its publication of an article entitling “Russian propaganda effort helped spread ‘fake news’ during election, experts say.” The article by Craig Timberg relied on a controversial website called PropOrNot, which published what is little more than a black list of website that the authors deemed purveyors of fake news including some of the largest sites on the Internet like Drudge Report. However, the previously unknown group was itself criticized for listing “allies” that proved false. Yesterday, Hillary Clinton ramped up the call for action against “fake news” which she described as an epidemic. Now the Washington Post has published a rather cryptic correction to the fake news story. The controversy is the subject of my latest column in USA Today.

The organization listed a variety of news sites as illegitimate. It included some of the most popular political sites from the left and right Truthout, Zero Hedge, Antiwar.com, and the Ron Paul Institute. It even includes one of the most read sites on the Internet, the Drudge Report. Notably, it also included WikiLeaks, which has been credited with exposing political corruption and unlawful surveillance programs.

The Washington Post is the largest newspaper to buy the clearly biased list as the work of objective “experts” — ignoring that the site relies on anonymity of those contributors. When the Post ran the story, some were eager to push the story as a reason why they lost the election. The former White House adviser Dan Pfeiffer tweeted, “Why isn’t this the biggest story in the world right now?” The reason is that it was facially absurd.
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Comey Sends Letter To Congress Citing New Evidence (and An Investigation) In The Clinton Email Scandal

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There is a major news development with the release of a letter from FBI Director James B. Comey that the Bureau has decided that new evidence requires further investigation into the Clinton emails. It was a surprising change just days before the election. After all, as recently as September 27, 2016, Comey rejected the idea that the bureau would reopen its investigation into Hillary Clinton’s use of a private email server while she was secretary of state. Comey wrote in a letter to top members of Congress that the bureau has “learned of the existence of emails that appear to be pertinent to the investigation.”

I have been critical recently of the handling of the FBI investigation, particularly in the granting of immunity to key potential targets. I recently wrote a column on FBI investigation into the Clinton email scandal and revised my view as to the handling of the investigation in light of the five immunity deals handed out by the Justice Department.  I had previously noted that FBI Director James Comey was within accepted lines of prosecutorial discretion in declining criminal charges, even though I believed that such charges could have been brought. However, the news of the immunity deals (and particularly the deal given top ranking Clinton aide Cheryl Mills) was baffling and those deals seriously undermined the ability to bring criminal charges in my view.

Wikileaks disclosures have only embarrassed the Bureau further in showing Clinton aides debating how to explain the deletions and how to delay turning over material. Comey now has told legislators that “I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.”
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CNN: It Is Illegal For Voters To Possess Wikileaks Material

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There was an interesting segment on CNN last week where CNN anchor Chris Cuomo reminds viewers for it is illegal for them to “possess” Wikileaks material and that, as a result, they will have to rely on the media to tell them what is in these documents. The legal assertion is dubious, but the political implications are even more concerning. Polls show that many voters view the media as biased and this is a particularly strong view among supporters of Donald Trump who view CNN and other networks openly supporting Clinton or attacking Trump.

More importantly, the mainstream media has reported relatively little from the Wikileaks material and has not delved deeply into their implications, including embarrassing emails showing reporters coordinating with the Clinton campaign and supposedly “neutral” media figures like Donna Brazile, formerly with CNN, allegedly slipping advance question material to Hillary Clinton. The credibility of the media is at an all-time low and most voters hardly feel comfortable with this material being reported second-hand or interpreted by the mainstream media. So is it really illegal for voters to have this material?

Cuomo was about to discuss embarrassing emails from Hillary Clinton campaign chairman John Podesta’s inbox but he stopped to remind viewers “remember, it’s illegal to possess these stolen documents,” Cuomo says. “It’s different for the media, so everything you’re learning about this, you’re learning from us.”
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Newly Released FBI Records Raise Questions of Intentional Destruction of Evidence By Clinton Contractor

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One of the most troubling aspects of the recently released documents from the FBI is a timeline established for when Clinton staffers used BleachBit to try to eradicate emails and prevent them from ever being recovered. It appears that staff may have deleted the email archive after the staff received a subpoena to preserve all such evidence. The staffer working for Platte River Networks (PRN) in Denver, Colorado reportedly had what was described as an “Oh Sh*t” moment when they realized that the archive could be used to uncover what the Clinton staff deleted.

PRN was a contractor working directly with the Clinton staff in the handling of the email material and has been the subject of long controversy over its lack of security to handle the classified information that was found on the emails.

The date line is troubling. In February, 2013, Clinton resigned as Secretary of State after making the decision to use the personal server for all of her email communications. Throughout 2014, Clinton staff order PRN to make a series of transfers and to wipe clean computers with emails.
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Recovered Emails Show Clinton Foundation Officials Intervening For Donors and Aides With State Department

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The Clinton Foundation has been the subject of long-standing allegations of questionable donations and reporting. It is also viewed by many critics as a massive shadow campaign structure that employed aides and funded Clinton trips. However, the most serious allegation was a type of pay-to-play scheme where foreign and domestic donors gave money in the hopes of currying favor or gaining access to the State Department. 

Now, Judicial Watch has released dozens of emails that were deleted improperly by the Clinton staff, but contain non-personal communications. Among the recovered emails are communications showing interventions for donors at the State Department, including one on behalf of a convicted money launderer. The relative lack of coverage on both the proof of the improper deletion of such emails and the pay-for-play concerns is astonishing — and magnify concerns that mainstream media has been giving such controversies minimal coverage.

Clinton turned over 30,000 emails and repeatedly insisted that some 30,000 deleted emails were entirely and clearly personal in nature. That has been proven to be untrue. More importantly, the emails contain clear interventions for donors. Clinton just recently denied any such connection between the Foundation and State Department business. 

However, in one email exchange, Doug Band, an executive at the Clinton Foundation, intervened for Gilbert Chagoury — a convicted money launderer — with the  US ambassador to Lebanon. Band emphasizes that Chagoury is a “key guy there [Lebanon] and to us” and asks Clinton aide Huma Abedin call Ambassador Jeffrey Feltman on behalf of Chagoury. Chagoury was a major donor to both the Foundation and is a close friend of former President Bill Clinton. He also pledged $1 billion to the Clinton Global Initiative. He was convicted in 2000 in Switzerland for money laundering, but cut a deal to avoid jail time.
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Lena Dunham Encourages People To Tear Apart The Movie Posters Of Other Artists

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Fresh from declaring her support of Oberlin students in claiming the serving of sushi is cultural appropriation, actress Lena Dunham (creator of HBO’s “Girls”), is supporting producer Tami Sagher’s effort to get people to deface the posters for the Jason Bourne movie. The objection is to the inclusion of a gun. So Dunham and Sagher are calling for the work of other artists to be defaced because they disagree with the content. They are doing so without a hint of recognized hypocrisy. Despite the attack on free speech, the response has been muted from HBO and Hollywood figures to an actress and a producer calling for the vandalization of the work of other artists.

There has been a long complaint that advocates on the left appear to discard free speech values when they disagree with the content of speech, as we have seen on college campuses in recent years. That growing concern is evident in the call of producer Tami Sagher who posted a photo of the gun image ripped out of the Jason Bourne New York subway ad with the caption, “Hey New Yorkers, what if we do some peeling & get rid of the guns in the Jason Bourne subway ads. So tired of guns.”

Ok, you are tired of guns, but what you are really saying is that you reserve the right to prevent others from seeing images if you are “tired” of seeing them. To make matters worse, you want others to tear apart the images of other film artists because you are tired of them. Nevertheless, Dunham loved the idea of vandalizing images that she does not want to see. She reposted Sagher’s juvenile message and added “Good idea @tulipbone! Let’s go!”
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No “Glitch”: State Department Admits That Press Briefing Was Intentionally Edited To Remove Passage . . . But Insisted It Cannot Find Official Responsible

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You may recall the controversy of a press conference at the State Department was later edited to remove an embarrassing question and answer regarding the Iran negotiations. When the exchange with Fox New Reporter James Rosen was found missing, Elizabeth Trudeau, director of the press office insisted that “Genuinely, we think it was a glitch.” Now, the State Department is admitting that it was not a glitch but an intentional editing of the transcript to remove the exchange. However, State Department spokesman John Kirby insists that they cannot determine who ordered the deletion.

The exchange occurred in 2013 when Rosen got then-spokeswoman Jen Psaki to admit to misleading the press on the Iran nuclear deal. (Psaki is now White House Communications Director). Rosen reminded Psaki that he had asked in February whether there were bilateral talks with Iran on the issue. Then-spokesperson Victoria Nuland denied that such talks were underway by saying “on a government-to-government level, no.” In fact, there were such talks underway. In December, Rosen asked Psaki “Is it the policy of the State Department, where the preservation or the secrecy of secret negotiations is concerned, to lie in order to achieve that goal?” Psaki responded: “James, I think there are times where diplomacy needs privacy in order to progress. This is a good example of that.” That seemed to confirm the obvious that the Administration had lied to the media and the public.
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