Category Archives: Courts

Censorship in the Patent and Trademark Office

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The Supreme Court has heard the oral arguments for Iancu v Brunetti, a case I wrote about a bit ago.  Hadley Arkes’ op-ed in The Wall Street Journal shed additional light on the matter, which centers on whether Iancu’s business can trademark the name of his business, Friends U Can’t Trust, with its acronym stand-in.

Certain words are fixed in the language with the moral functions of “commending” and “condemning,” and some of them have a special edge….

You bet.

However, confusing F**T with the specially edged F**K can only be done by those with potty-mouthed minds.  Ordinary people, people with the barest modicum of decorum, are not so easily misled, whether they simply choose not to see the worst in everything they encounter, or they’re mildly amused by the obvious jape.

Chief Justice John Roberts did raise a significant point:

…advertisements will be posted in malls where children can see them. Mr Brunetti is appealing to rebellious young men, “but that’s not the only audience he reaches….”

However, this isn’t the risk that Roberts thought he saw.  This is an excellent opportunity to teach those children how to recognize critical differences and to not be misled by artificial similarities.  And to teach them how not to be easily offended or cavalierly crude.

Putting potty-mouthed minds into the PTO to effect government censorship according to their base criteria should be unacceptable.

The Attorney General and Immigration Judges

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John Yoo, who was a Deputy Assistant Attorney General in the Department of Justice Office of Legal Counsel, has reminded us of the authority of the AG vis-à-vis immigration judges.

He [the AG] has the power to overrule immigration judges. Immigration judges have been making mistakes….

Aside from the immigration judges’ error rate, it’s really quite clear that the AG can overrule them. Not only are immigration judges not Article III judges, they’re employees of the Department of Justice—they work for the AG. Beyond that, they’re not even judges; they’re Special Inquiry Officers.

Mores and the Patent and Trademark Office

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The Supreme Court has taken up the case of Iancu v Brunetti and heard oral arguments Monday.  Erik Brunetti wanted a copyright on the label for a clothing line of his that he’d named FUCT, an acronym for Friends U Can’t Trust.  Iancu is Andrei Iancu, who is duel-hatted as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.  Wearing that second hat, Iancu and his fellow USPTO bureaucrats said they were scandalized and morally offended, and they denied Brunetti’s copyright application.  The Wall Street Journal, at the link, said

On [last] Monday the Justices will consider whether to broaden First Amendment protection to trademarks that offend moral sensibilities.

More correctly, though, whether the Justices recognize this or not, they’ll be considering whether to protect trademarks that offend the particular sensibilities of a few Government bureaucrats.

What constitutes scandalous is inherently subjective and depends on cultural mores….

This, on the other hand, is overbroad. Again, what constitutes scandalous behavior (what is scandalism?) in Government permitting doesn’t depend on cultural mores so much as it depends on the mores of a few Government bureaucrats and on how those bureaucrats choose to interpret what they personally view as the nation’s cultural mores.

It’ll be instructive if Brunetti doesn’t get a unanimous favorable ruling.

Pleas?

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There seems to be a movement toward plea bargaining in the university bought-admissions scandal.

A father who allegedly bought water polo gear on Amazon.com to falsely portray his son as a competitive player and ease the boy’s admission into the University of Southern California is in plea discussions for his role in the nationwide college-admissions scandal.

And

“Mr Sloane and the Government are currently in discussions that are calculated to resolve this matter without a trial and reasonably expect that will occur,” his lawyers said in a court filing late Tuesday, asking that Mr Sloane not be required to appear in federal court here Wednesday.

Sloane’s not the only one, though.  What’s up with this?

There should be no pleas anywhere on this.  These were cold-blooded, premeditated crimes.  The damage done by them is far-ranging, from the abuse of the kids whose admission was bought, thereby denying them their own opportunities for the sake of their so-called parents’ egos to the kids who were denied admission because the seats for which they were competing were bought out from under them.

Hale the accused into court, hold the trials, and if convicted, lock the felons up for a very long time.

Blue about Blue Slips?

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For a long time—nearly a century, according to Senator Dianne Feinstein (D, CA)—the Senate had a tradition (not a rule) that Senators from the home State of a judicial nominee had to approve that nominee—send forward a “blue slip” before that nominee could be considered, or even sent to the Senate Judiciary Committee.

The administration of President Donald Trump has tended to disregard that tradition.  In fact, he’s sent seven—according to Feinstein, again—appellate court nominees to the Senate over “the objection of home-state Democrats” and—the horror—gotten them confirmed, including a number to the California-based 9th Circuit.

Feinstein’s latest peeve concerns Ken Lee and Dan Collins, whom Trump has nominated—to the 9th Circuit.  Both Feinstein and her California colleague, Senator Kamala Harris (D) withheld their blue slips for both of these two judges.

Feinstein is pretending to object on the basis of tradition, which itself cynically holds tradition to be inviolate, no matter the circumstances.

Democratic senators have made and continue to make good faith efforts to find consensus picks for the circuit courts.
As Senator Harris and I have made clear, we’ve been willing to work from the start with this president to choose consensus, mainstream nominees to the 9th Circuit….

Except that they have not. These two nominees, along with the other Trump nominees—and confirmations, including to the 9th—are textualists: they hold that the Constitution (and laws) mean what they say; they are not open to reinterpretation according to a judge’s view of the “needs” of society.  It doesn’t get any more mainstream than that. Indeed, any lack of consensus just shows how out of touch with our supreme Law, how out of the mainstream, modern Liberal judges are.

But the fact is, Feinstein and her fellows are not objecting on the basis of tradition.  They’re objecting on the basis of the loss of their ability to dictate who they will permit to be nominated, their ability to avoid open debate on the fitness of a nominee.

We’ve seen, too, the quality of the “faith” with which Feinstein and her fellows have been willing to work from the start with this president on judicial nominees.  These Progressive-Democrats made that clear with their smear campaign on then-Supreme Court nominee Brett Kavanaugh.

The blue slip policy is a tradition the Progressive-Democrats have badly abused to the point of its partisan destruction.