Appeals Court Rightly Overturns NAACP's Successful Attempt To Censor Speech Via Trademark Law

from the free-speech-matters dept

Last fall, we wrote about a troubling decision in a district court that ruled that the NAACP could use trademark law to censor a vocal critic who had written a mocking online article calling the NAACP the "National Association for the Abortion of Colored People" as part of an anti-abortion campaign. The NAACP sent the organization that posted the story, the Radiance Foundation (and the author/owner of Radiance, Ryan Bomberger), a legal threat letter. In response, Radiance filed for declaratory judgment that it did not infringe on the NAACP's trademarks, and the NAACP countersued arguing trademark infringement. The lower court sided with the NAACP, and barred Bomberger/Radiance from using the fake NAACP name to mock the group.

No matter how you feel about the NAACP or abortion, the idea that it would use trademark law to silence a critic is highly questionable. Remember, the purpose of trademark law is to protect consumers from confusion in commercial settings. But, as with copyright, many seek to use it as a crude censorship tool -- and here, it worked. At first. Thankfully, the Fourth Circuit has overturned that ruling noting the total lack of actual trademark infringing, and hinting at (though leaving aside) the serious First Amendment concerns. The court here notes that to interpret trademark law the way the NAACP requests would lead to plenty of suppressed speech that has nothing to do with the true purpose of trademark law:

The NAACP urges us to give this requirement a “broad construction,” Appellee’s Br. at 18, but that construction would expose to liability a wide array of noncommercial expressive and charitable activities. Such an interpretation would push the Lanham Act close against a First Amendment wall, which is incompatible with the statute’s purpose and stretches the text beyond its breaking point. We decline to reach so far.

From there, the court rightly worries about what would happen if it accepted the NAACP's interpretation of trademark law:

The danger of allowing the “in connection with” element to suck in speech on political and social issues through some strained or tangential association with a commercial or transactional activity should thus be evident. Courts have uniformly understood that imposing liability under the Lanham Act for such speech is rife with the First Amendment problems.

The court then details where the lower court went wrong. The lower court claimed that because Radiance sought donations in its sidebar, that made the article "use in commerce." But the appeals court points out that this is ridiculous and would "neuter the First Amendment."

That ruling, however, neuters the First Amendment....

Suffice it to say that the specific use of the marks at issue here was too attenuated from the donation solicitation and the billboard campaign to support Lanham Act liability. Although present on the article page, the Donate button was off to the side and did not itself use the NAACP’s marks in any way. The billboard campaign was displayed on a different page altogether. A visitor likely would not perceive the use of the NAACP’s marks in the article as being in connection with those transactional components of the website. It is important not to lose perspective. The article was just one piece of each Radiance website’s content, which was comprised of articles, videos, and multimedia advocacy materials. That the protected marks appear somewhere in the content of a website that includes transactional components is not alone enough to satisfy the “in connection with” element. To say it was would come too close to an absolute rule that any social issues commentary with any transactional component in the neighborhood enhanced the commentator’s risk of Lanham Act liability.

And thus, the court notes that merely writing an article that mocks the NAACP is not really "use in commerce" for the sake of trademark law. From there, the court also takes on the "likelihood of confusion" question, and finds no such likelihood exists. And, again, the court notes (correctly) that getting this test wrong could have First Amendment implications:

Indeed, criticism or parody of a mark holder would be difficult indeed without using the mark.... Trademark protections exist neither to allow companies to protect themselves from criticism nor to permit them to “control language.” .... Even some amount of “actual confusion” must still be weighed against the interest in a less fettered marketplace of social issues speech.

And, in this case, the lower court was itself quite confused... over the basics of trademark law. First, it notes, it doesn't matter if Radiance's usage confused people into thinking that the NAACP supported abortion -- as that's not what trademark law is about:

Likewise, trademark infringement is not designed to protect mark holders from consumer confusion about their positions on political or social issues. The evidence of “actual confusion” relied on by the district court consisted of phone calls to the NAACP by people who took issue with the NAACP supporting abortion. Radiance Found.... “[I]ndignation is not confusion,” ... at least not as pertains to trademark infringement, and at best the calls demonstrated confusion as to the NAACP’s policy positions rather than any good or service. Policy stances are neither goods nor services, though the means of conveying them may be.

And from there we get to the key point. If the NAACP's position here were accepted, it would create serious problems that would come back around to likely haunt the NAACP itself:

Political discourse is the grist of the mill in the marketplace of ideas. It may be that the only -- but also the best -- remedy available to a trademark holder is to engage in responsive speech. For even where a speaker lies, “more accurate information will normally counteract the lie.”... The NAACP is a renowned civil rights organization with numerous mechanisms for connecting with its membership and the public. Organizations of its size and stature possess megaphones all their own. “Actual confusion” as to a nonprofit’s mission, tenets, and beliefs is commonplace, but that does not transform the Lanham Act into an instrument for chilling or silencing the speech of those who disagree with or misunderstand a mark holder’s positions or views.

On top of that, the court is perplexed as to how the lower court could possibly find a likelihood of confusion as to the source of the mocking article, considering that it was clearly mocking the NAACP, rather than coming from it:

It is not immediately apparent how someone would confuse an article which is strongly critical of an organization with the organization itself. The mark in this case was used primarily to identify the NAACP as the object of Radiance’s criticism, resembling a descriptive or nominative fair use albeit by employing a modified version of the name. Admittedly, the attention span on the Internet may not be long, but the briefest familiarity with the article would quickly create the impression the author was no friend of the NAACP. Indeed, in just the first two lines, the piece refers to the NAACP as an “out-of-touch liberal organization” and accuses its Image Awards of honoring “black imagery churned out by often racist, anti-Christian, perpetually sexist, violent and pornographic Hollywood.”

In short, being mean doesn't mean a likelihood of confusion:

Intemperate and worse as the commentary is, holding it actionable risks creating the paradox that criticism equals confusion, thereby permitting companies to shield themselves from adverse assessments.

It's disappointing that an organization that so relies on free speech decided to attack it in this case. While the court avoids having to take a First Amendment position, it's clear that the First Amendment is lingering behind the entire ruling:

Trademark law in general and dilution in particular are not proper vehicles for combatting speech with which one does not agree. Trademarks do not give their holders under the rubric of dilution the rights to stymie criticism. Criticism of large and powerful entities in particular is vital to the democratic function. Under appellee’s view, many social commentators and websites would find themselves victims of litigation aimed at silencing or altering their message, because, as noted, “it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference or any other such purpose without using the mark.” ...The article in this case was harsh. But that did not forfeit its author’s First Amendment liberties. The most scathing speech and the most disputable commentary are also the ones most likely to draw their intended targets’ ire and thereby attract Lanham Act litigation. It is for this reason that law does not leave such speech without protection.

It's only unfortunate that the case even had to go this far, and that the district court got it so wrong the first time around.

Filed Under: first amendment, free speech, likelihood of confusion, ryan bomberger, trademark
Companies: naacp, reliance foudnation

EFF To NAACP: Trademark Isn't For Censoring Your Critics

from the abort!--abort! dept

It's amazing how often trademark claims are used simply as a tool for censoring critics. A legal framework that is supposed to be about protecting consumers has been twisted into a strong-arm thug. That said, most times the plaintiffs in these cases at least make a show of pretending that they aren't simply trying to suppress critical speech -- even if the courts frequently see right through those attempts and opt to protect free speech. That doesn't appear to be the case in one federal court in Virginia, which has failed to protect the mocking speech of conservative group Radiance Foundation in a blog post criticizing the NAACP.

In that case, Radiance Foundation v. NAACP, the fight was over a blog post that criticized the NAACP. The Radiance Foundation is a conservative non-profit that advocates for what it perceives to be appropriate family values. In a blog post titled “NAACP: National Association for the Abortion of Colored People,” Radiance claimed that the NAACP embraces “all things liberal, most things socialistic, and nothing pro-life.”

The NAACP responded with a letter to Radiance threatening a lawsuit if it did not cease “using” the NAACP’s trademark. Radiance called on the courts for protection, asking for a declaration the blog post was protected speech. After a bench trial, Judge Raymond Jackson ruled against Radiance, finding that the post infringed the NAACP’s trademark and giving little credence to Radiance’s First Amendment claim.

I'm not entirely certain where the misunderstanding on the judge's part is here, but it's been well-established that the First Amendment, and criticism in particular, trumps trademark law. The Radiance Foundation's speech, while wholly obnoxious, is and ought to be protected. As a group that relies on the criticism of well-established powers to advance its agenda, I would think the NAACP would want to be especially careful not to erode the power of free speech in the land it hopes to change. Attempting to apply trademark law to political speech instead of simply economic speech, meaning advertising, is a dangerous step.

The EFF in particular appears eager to get involved in the case.

Today EFF, together with the ACLU of Virginia, filed an amicus brief in the appeal of this ruling. We are supporting Radiance’s appeal not because we agree with its message, but because a decision holding it liable for trademark infringement threatens a huge range of expression. Our brief explains that Judge Jackson’s decision misreads both trademark law and the First Amendment. There are many cases holding that use of a trademark in speech commenting on or criticizing the trademark owner is not infringement. Moreover, the First Amendment provides an independent reason for dismissing this trademark claim. We hope the Fourth Circuit agrees and protects the right to mention or mock a trademark, just as it protects the right to mock a trademark owner.

It's the right decision and a great place to take a stand, because it highlights the ideal: the protection of free speech, even if it is speech with which one disagrees.

Filed Under: criticism, free speech, trademark
Companies: eff, naacp

Net Neutrality Astroturfing Stirs Up Conflict Between Latino/Minority Groups

from the look-at-that dept

We've written a few times about the highly cynical astroturfing practice in Washington DC, in which certain lobbyist groups basically have "deals" with certain public interest groups. The basic deal is that the lobbyists guarantee big cash donations from their big company clients, and then the lobbyists get to write letters "on behalf of" those organizations for whatever policy they want enacted (or blocked). We quoted a story from Declan McCullagh in 2008 which included this classic line from a lobbyist who worked in one of these shops:

"You go down the Latino people, the deaf people, the farmers, and choose them.... You say, 'I can't use this one--I already used them last time...' We had their letterhead. We'd just write the letter. We'd fax it to them and tell them, 'You're in favor of this.'"

That first option, "the Latino people" turned out to be rather prescient. During the last net neutrality fight, in 2009, it was revealed that a bunch of Latino groups magically supported the telco position -- leaving out the bit about how they were funded by the telcos. Here's Matthew Lasar, back in 2009, revealing some details:

Take the go-slow on net neutrality commentary filed in late September by the Hispanic Technology and Telecommunications Partnership (HTTP) and 19 other civil rights groups. Their statement warns that net neutrality policies could inhibit investment and "leave disenfranchised communities further behind." The coalition describes themselves as having a common purpose, serving communities "that are among the most severely impacted by a lack of access to technology." And indeed the list includes signers from venerable organizations like the National Association for the Advancement of Colored People (NAACP) and the League of United Latin American Citizens (LULAC).

But the groups signing the letter have something else in common: financial support from AT&T (and sometimes Verizon and Comcast). These advocates don't hide this. For example, the website of one of the signers, the Japanese American Citizens League, says "Website made possible by the generous sponsorship of AT&T." 100 Black Men lists AT&T as a "partner" and "sponsor" of the group. AT&T Foundation's 2007 tax returns show that 100 Black Men received $100,000 that year and $75,000 in 2006.

Similarly, the NAACP, which also signed the statement, lists AT&T and Verizon on its Centennial Event sponsors page. LULAC's website indicates that it received a $1.5 million Technology Access Grant from AT&T. Comcast Foundation's records indicate that it gave the LULAC Institute $60,000 in 2007. And in 2006 the AT&T Foundation gave LULAC numerous grants to support computer education centers across the United States.

And some of these groups have even more direct ties to the telcos. The Asian American Justice Center's Advisory Council includes Anne H. Chow, listed as "AT&T Chair" on the group's website. In 2006, AT&T identified her as a senior vice president for the company. Her AAJC bio says that Chow "played a key role in the AT&T/SBC merger with overall responsibility for the Sales and Marketing integration planning effort."

And then, jump forward to 2011, when AT&T was trying to buy T-Mobile. The merger received some unexpected support:

The Hispanic Institute and the Latino Coaltion have decided that supporting the merger of AT&T with T-Mobile is of utmost importance to them.

A further report noted:

One DC insider informs us that rumblings on K Street suggest AT&T had called every civil rights group in the United States for support within fifteen minutes of the deal being announced. Fearful of losing AT&T donations -- most of these groups quickly got to parroting prepared AT&T statements, unconcerned about the actual impact of a T-Mobile deal. Getting funding for a new events center apparently dulls any ethical pangs felt using your organization as a hired stage prop.

Then, last year, the Center for Public Integrity decided to explore the nature of these various "civil rights groups" and their ties to the big broadband players, and found the situation to be quite suspect, especially with regards to the Minority Media and Telecommunications Council (MMTC), which helps coordinate many of these filings for the FCC:

From 2009 through 2011 MMTC received at least $725,000 in contributions and sponsorships from network neutrality foes including Verizon, Time Warner, and the National Cable and Telecommunications Association, according to MMTC tax filings and sponsorship lists.

MMTC’s relationship with Verizon demonstrates the group’s various methods of obtaining industry revenue. In 2009, at the height of the net neutrality debate, Verizon made a direct $40,000 contribution to MMTC. From 2010 to 2013, MMTC documents list Verizon as funding at least $160,000 in MMTC conference sponsorships.

Additionally, MMTC worked with Verizon on a $189 million sale of wireless spectrum licenses to minority-owned Grain Management this year — a deal announced in conjunction with a larger $1.9 billion license sale to AT&T. A spokesman for Verizon says money paid to MMTC wasn’t intended to influence its policies but to support its mission of promoting inclusion in the industry.

So it should come as little to no surprise that a bunch of these same groups, once again, filed a pro-telco comment with the FCC, arguing that reclassifying broadband under Title II would somehow be harmful to minorities. Note that the filing was coordinated by HTTP and MMTC -- both groups discussed above as taking money from the big broadband guys. The argument they're presenting makes absolutely no sense, but no one cares how sensible the argument is.

HTTP partnered with the Minority Media and Telecommunications Council (MMTC) and 35 other national minority organizations to file comments in the FCC’s proceeding to protect and promote the open Internet. The group urged the Commission to focus its broadband policies on promoting adoption, engagement, and informed broadband use by minorities, and to exercise its Section 706 authority to protect all consumers’ rights to an open Internet. In the filing, the organizations opposed Title II reclassification of the Internet under the 1934 Telecommunications Act, arguing that it would stifle broadband adoption among vulnerable populations, and would limit investment and innovation that have benefitted its constituents. Six HTTP member organizations also joined independently in the filing: Dialogue on Diversity; LISTA; MANA: A National Latina Organization; the National Puerto Rican Coalition; SER Jobs for Progress; and The Latino Coalition.

The difference this time, however, is that other groups, representing Latinos, Hispanics and other minority groups who are not funded by the big broadband guys, are now paying attention. And they filed their own FCC comments supporting Title II reclassification:

On Friday, the Voices for Internet Freedom coalition filed comments with the Federal Communications Commission (FCC) on behalf of more than 50 civil rights, human rights, community-based and media organizations in support of strong Net Neutrality rules that protect the digital rights of communities of color.

In the filing, the groups called on the FCC to treat Internet Service Providers (ISPs) as common carriers, which would allow the Commission to reestablish its legal authority to adopt Net Neutrality rules that prevent telecommunications companies from blocking, discriminating against and interfering with Web traffic. The coalition also called on the agency to ensure Net Neutrality protections are applied equally to both wireline and wireless Internet access.

The group opposes the framework for FCC Chairman Tom Wheeler’s proposed rules, which would allow ISPs to discriminate by creating fast and slow lanes online....

Voices for Internet Freedom is a coalition of nearly 30 organizations advocating for communities of color in the fight to protect Internet freedom from corporate and government discrimination. The coalition is led by the National Hispanic Media Coalition, the Center for Media Justice, Free Press and ColorOfChange.

And now the fight seems to be getting personal. Alex Nogales, the head of the National Hispanic Media Coalition, called out the Congressional Hispanic Leadership (which has come out in support of the broadband company's plan to kill net neutrality) by pointing out that they held a briefing that was sponsored by the telcos and totally one-sided. The event was so over-the-top biased that even some in the mainstream media highlighted how ridiculous it was.

Martin Chavez, from the telco-supported Hispanic Technology & Telecommunications Partnership, posted a blog post that purports to be a "can't we all just get along" type post, but which really personally slams Alex Nogales for what Chavez claims was an "angry outburst and lapse of judgment." Nogales isn't taking that sitting down and responded by pointing out that Chavez seems to conveniently leave out who pays his salary:

What is most interesting about Marty’s statement is what it doesn’t say. Notably, he did not address his employment with Ibarra Strategy Group, a lobbying firm whose clients include Verizon – the main opponent to strong and enforceable Open Internet rules. One would think that a person with such an egregious conflict of interest would, at least, disclose it in his public statements. Marty, unfortunately, does not.

Regrettably, what Marty did say in his statement is just as deceptive as what he conveniently left out. Of the many fabrications, Marty said that ‘most Latino organizations’ oppose the FCC using the sound legal authority found in Title II of the Communications Act to restrict blocking or discrimination online. This is patently false. A number of highly respected Latino organizations have sided with the community and come out in favor of strong Open Internet rules based on Title II authority, including: the Hispanic Association of Colleges and Universities (HACU), LatinoJustice PRLDEF, the National Association of Latino Independent Producers (NALIP), the National Association of Hispanic Journalists (NAHJ), the Mexican American Opportunity Foundation (MAOF), Presente.org, the National Latina Institute for Reproductive Health, the National Institute for Latino Policy, News Taco, Latino Rebels, and more.

It certainly is disappointing to see groups like this fight, but it's worth noting that there certainly does seem to be a clear pattern, as noted years ago, that the groups with funding from the broadband guys magically support the broadband players' position, while the ones who are not funded that way actually seem to recognize the importance of not giving in to the broadband guys' plans to kill net neutrality.

Filed Under: astroturfing, fcc, latino groups, lobbying, minority groups, net neutrality, open internet, title ii
Companies: at&t, comcast, hhtp, hispanic institute, latino coalition, lulac, mmtc, naacp, nhmc, t-mobile, verizon, voices for internet freedom