What Is a Lie and Is It Constitutionally Protected?

I think that the three judge panel’s decision to recommend dismissal of ethics charges against Justice Michael Gableman is the right outcome. I doubt that we really want tribunals passing upon the truth and falsity of campaign speech – even for judges.

There were differing approaches taken by the panel judges. Judges Snyder and Deininger found that the Gableman campaign’s ad criticizing Louis Butler for “finding a loophole” for a convicted rapist who went on to offend again was literally true, nohwithstanding that “the loophole” did not result in Butler’s client’s release and he offended again only after serving his sentence.  It was, they believed, a misleading ad but true because each sentence in the ad, taken in isolation, was literally true. Although the Judicial Code also addresses true, but misleading statements, its admonition against such statements is only aspirational and cannot form the basis for discipline.

Judge Fine, on the other hand, wants to take the statement as a whole and that has substantial intuitive appeal.  We don’t, in common discourse,  isolate a message’s individual words, phrases and sentences to discern its meaning.

He goes on, however, to find that the Code’s prohibition on knowingly false statements to be unconstitutional. But that finding  seems itself to be a function of his willingness to apply the language of that Code in a more expansive way. 

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An Academic Expert Weighs in for Mayoral School Control

Professor Kenneth K. Wong of Brown University and several associates put out a book two years ago titled “The Education Mayor: Improving America’s Schools,” which immediately became the book to read if you were interested in mayoral control of public schools. And Wong is probably the number one figure in academic research about how mayoral control works.

The book was the most thorough examination of the results of efforts to give mayors control – or at least strong roles – in schools in dozens of cities across the United States. And there was something in it for pretty much everybody – supporters of mayoral control focused on conclusions about greater administrative effectiveness in such systems, critics pointed to conclusions that the impact on academic achievement had been generally small in most cities.

But Wong was in Milwaukee this week and, in a presentation to about 25 people at the Milwaukee Athletic Club, came down firmly on the side of mayoral control, including in Milwaukee. In his talk and in an interview following his talk, Wong said data that have come in since the book was written has been increasingly encouraging for mayoral control advocates. 

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Redskins Prevail in Offensive Trademark Case

Washington Redskins logoEarlier today (Nov. 16) the United States Supreme Court denied cert. in the case of Harjo v. Pro-Football, Inc., bringing to a close, at least for the moment, litigation concerning the legality of the Washington NFL team’s registration of its “Redskins” trademark. The decision not to hear the case was announced without comment.

In 1992, Native-American activist Suzan Harjo, on behalf of herself and six others, petitioned the Trademark Trial and Appeal Board (TTAB) to cancel six trademark registrations granted to the Redskins beginning in 1967. (Although team had used the name “Redskins” since 1933, it did not attempt to register the trademark until 1967.)

The gist of Harjo’s argument was that the TTAB had erred in registering the trademark because it violated section 2(b) of the federal Lanham Trademark Act, which prohibits the registration of a mark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The Redskins (who do business as Pro-Football, Inc.) defended on grounds that the trademark was not offensive and that such an interpretation of the Lanham Act unconstitutionally violated the team’s rights under the First and Fifth Amendments to the United States Constitution.

In 1999, seven years after the initial claim, the TTAB ruled in favor of Harjo, finding that the trademarks “may be disparaging of Native Americans to a substantial composite of this group of people,” and “may bring Native Americans into contempt or disrepute.”  Consequently, it scheduled the cancellation of the offending marks.  The ruling was appealed to the United States District Court for the District of Columbia, which in 2003 ruled that the complainants had failed to establish that the marks were in fact disparaging and that in any event their failure to bring the claim in a timely fashion—25 years passed between the first registration and the initial complaint—resulted in it being barred by the equitable doctrine of laches.

On the appeal of that decision, the Court of Appeals for the District of Columbia ruled in 2005 that the laches defense was valid for six of the seven petitioners, but remanded the action to the District Court for a determination whether or not the defense was valid as applied to petitioner Mateo Romero who was only one year old when the mark was first registered in 1967.  It retained jurisdiction over the “disparagement” claim without ruling whether the TTAB or the District Court were correct.

Upon reconsideration the District Court concluded that the laches defense applied to Romero as well, given his understanding of the issues involved prior to reaching the age of majority and his failure to object to the registration until almost eight years after reaching the age of majority.  This conclusion was upheld by the Court of Appeals in May of 2009, and it was this decision that the Supreme Court decided today not to review.

There are apparently plans, however, to re-file the challenge to the registration but this time using Native American challengers who have just reached the age of majority.  The earlier Circuit Court of Appeals decision suggested that such plaintiffs would not be barred by the laches defense.  Such a case will presumably reopen the question of the propriety of the Redskins trademark.

Of course a reprisal of the original TTAB ruling would not prevent the Washington team from continuing to use the name “Redskins.”  It would, however, prevent the team (and the NFL) from excluding others from making use of the name.

A subsequent post will examine the historical background of the team name, Washington Redskins.

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