Heritage foundation discussion on a court ruling on offensive language and freedom of speech. Containshour event language some viewers might find offensive. Good afternoon, welcome to the Heritage Foundation. This is the Sarah Allison auditorium. Who are hereose from our heritage. Org website, and on cspan tv. For those inhouse, we would ask a courtesy that mobile devices are silenced or turned off. Isone watching online welcome to send a question at any time, emailing speaker at heritage. Org. Bateseaker is tiffany legal policy analyst. , she researches and writes about records, judicial nominations, and other constitutional issues. She is also cohost of heritages 101 podcast. She was a regular contributor to the daily signal, heritages multimedia organization, and she also coordinates a pellet advocacy program. Please join me in welcoming tiffany bates. Tiffany. [applause] thank you, and welcome to the Heritage Foundation, and thanks for joining us to celebrate free speech week by highlighting recent First Amendment victories. I look at my remarks and introduction short so we can get i will keep my remarks and introduction short so we can get to what we are all here for. The beer. [laughter] this summer, the Supreme Court reiterated that we protect the freedom to express the thought that we hate. While the freedom of speech as long been the core of our free society, it has really come under sharp attack. The courts however have pushed back over the last few years, continually extending First Amendment protection to what some call free speech. First, we will hear about a brewery after his application was denied to register a beer label. We will then see a short video from the bass player of the chinatown based band after the Trademark Office refused to trademark their name. In a unanimous win, the Supreme Court found the disparagement clause violated the First Amendment. Judge elio wrote that such a law offends bedrock First Amendment principles. The speech may not be banned on the ground that stresses ideas that offend. Finally, we will talk about the fate of the Washington Redskins trademark that the government canceled under the same disparagement clause. As the Supreme Court handed down its opinions in june, all parties to the redskins case and the department of justice sent letters to the Fourth Circuit saying that the case control to position and the court must enter judgment for the redskins. It has been four months, but the Fourth Circuit has not been so. If the court taking its time or try to distinguish the case in order to rule against the redskins . We will explore the future of free speech with our great panel of experts. Jim is the ceo and general partner of flying dog brewery. Is known for its worldclass beers combined with distinctive art. Jim is as passionate about the First Amendment as he is about the beer he produces, and he has been an advocate for the freedom of speech since the 1970s. In 2015, using damages awarded by michigan after its court battle, jim founded First Amendment society, a nonprofit Whose Mission is to raise Public Awareness about First Amendment principles. He is the recipient of numerous awards for his business prowess and dedication to the First Amendment. In a bachelors and masters degree in economics from the university of missouri, and he holds a degree in brewery science. Trevor is a Research Fellow in the cato Institutes Center for constitutional studies and managing editor of the Supreme Court view. His Research Interests includes constitutional law, civil and criminal law, legal and political philosophy, and legal history. His writing an Academic Work has appeared in many news outlets and journals across the country. He is also the cohost of free thought, a weekly podcast that covers topic the libertarian theory, history, philosophy. He holds a ba in philosophy from the university of colorado and a degree from the university of denver. Finally, an appellate litigator. Since starting his own practice in 1997, he has been involved in appeals on a broad range of legal issues, including the first, second, fifth, and 14th amendment and other state and federal constitutional and statutory matters. He has been involved in over 100 Supreme Court matters, including filing 30 petitions represent half a dozen parties and filing over 60 briefs. He holds a ba from Dartmouth College and a degree from columbia. He served to Doug Ginsburg on the d c circuit and just as commerce on the Supreme Court. We will hand it over to jim. Thank you, tiffany, for inviting me to be on this panel and thank you to the Heritage Foundation for the fine would you on a day in and day out basis. As most of you know and probably better than i, free speech as we know it today did not really exist before the 1960s and yet i am a child of the 1950s, so i observed the development of First Amendment law, and by the 1970s, it was passionately committed to the principles of the First Amendment, both as one of the most basic human rights and the First Amendment as the rockstar of the constitution as floyd abrams ascribes it. Describes it. To master freedom, the financial freedom, or intellectual freedom, political freedom, and economic freedom. One of the First Amendments in my business intersect and was in 1955 when we released a beer, road dog, with an original label by the internationally famous artist, ralph stedman. He was painting the slide on the bbc. There is a fun back story behind it Robert Bentley in an effort to poke the bbc a little bit and as it related to an essay that hunter wrote for the release of this beer, he scribbled on there in his fountain pen font, good beer, no. [laughter] we received the label and loved it. We released it in denver, colorado. Got huge press, both for the beer and the distinctive label art. This was back in 1995. But a competitor complained to the Colorado Liquor Commission that the word was an obscenity. The commission agreed and commanded that we remove the product on the shelf or our license is suspended. We pulled a quarter Million Dollars worth of beer from the shelf, released the beer with good beer, no censorship. [laughter] not surprisingly, sued the Colorado Liquor Commission, and six is later, the colorado Supreme Court overruled the Colorado Liquor Commission. The word is not an obscenity. In 2009, we released a beer, again, with original label art, and the name of the beer is raging. As some of you may or may not know, most states require some sort of submission of labels before you sell the beer. It is a routine administrative process. We do hundreds of these a year. On but announced to me, this unbeknownst to me, this beer was not approved for sale in michigan. It was rejected. We had shipped some. It was a mistake. Michigans response was clear and immediate. If we do not remove the beer from the shelves within 24 hours, the state police will be sent out to remove it, and i could be charged with a felony. We removed the beer. [laughter] i appealed the decision of the Michigan Liquor control commission. And for all of us who are concerned about and cherish our constitutional freedoms, we should be somewhat concerned with some of the reasons they gave for not liking this beer. The name, the art, or the label copy. But some of the reasons that the appeal hearing were that Oprah Winfrey does not allow that word on her show. Wonderful. [laughter] i am waiting for a reference to the constitution because they have already assured me this was not a First Amendment issue. Another thing that they told me was that the Westminster Kennel Club no longer uses that word to refer to female dogs. Ok. [laughter] i get it. They also said that it has to be removed from the shelf because the mere passive observance of this beer on the shop will incite violent action. For years, the commission rejected any beer with that word in it because they did not like the word. The bedrock rentable of the First Amendment is the government cannot control or suppress speech just because they do not like the content of it. Not surprisingly, we sued the state of michigan. Michigan Liquor Control Commission and commissioners as individuals. It was in the western district, the first hearing. The ruling was in favor of the Michigan Liquor control commissioners, and the court extended to them both quasijudicial and judicial immunity. Basically saying not really sure if this is a violation of your First Amendment rights, but it does not really matter because they were immune from being sued. That was appealed to the sixth circuit, and after four more years of waiting come in the sixth circuit ruled unanimously in our favor with the dissenting but concurring opinion further citing not only are they liable to be sued for their violation, a possible violation of the First Amendment rights, but it is a clear blatant violation of flying dogs First Amendment rights. We went back and settled with michigan. I used the proceeds of that to create the First Amendment society. It is a nonprofit. It is rather new, but we have a Speaker Series that we have constitutional attorneys talking about everything from fcc regulations to the First Amendment. We are sponsoring a scholarship for Investigative Journalism at the university of maryland working in conjunction with a lot of liberty oriented groups to speak at free speech events and college campuses, so this is a big part of what we do. In short lies a brewery here talking about the First Amendment because i have spent 12 of the last 22 years in litigation or in court suing states because they personally did not care for a beer label. Thank you. [applause] next, we will watch a short video from simon, who is sorry he cannot join us in person. Hello from sydney, australia. My name is simon, founder of the worlds first all automation dance rock band. I am sorry i cannot be there in person joining you today. I started this band over a decade ago because i wanted to create something that would empower Asian American communities, but it ended up being something that took me to a legal battle that lasted eight years against the u. S. Trademark office. I originally chose the band name so long ago because i wanted to change something that was a point of shame for me as a kid to a simple empowerment as an adult. The story of me surviving being bullied would resonate with marginalized communities also have a difficult time with their identities, so we wanted to read appropriate this outdated word and what made it popular to begin with. It was used as slant eyed against asianamericans, but it was a term that our community struggled to use in the 1980s and 1990s as a part of pride instead. We recently applied for the trademark eight years ago because it is something that is really important for bands to do. It is a known part of the career as you are making national headlines, you go ahead and register the mark so you protect your brand. The whole point of the trademark system is to protect consumers. It would not help people if they were 10 bands out there all with the exact same name, so we created a system where people can apply for intellectual rights and make sure there are not imitators. That way if you are buying concert tickets to see a band coming can be assured that it is the right band. It is not really traditionally a place for government to decide morality on. It is more of a filing system. If you dont have the requirement to be a business that you should have a legitimate business and protect those interests come about as simple process changed into a much larger fight when the government decided that they would know what is best for the Asian American community. They told me the name the slants is disparaging to people of Asian American dissent even though we had no complaints from our community. For the government to deny you rights based on this complaint, they have to see that it is a substantial composite that a group finds it offensive, but they did not find a single Asian American who was offended by the name. Instead, they relied on websites and quoting from anonymous folks on message boards. When we decided that they want to strip the agency of our ability to determine what is right for ourselves, we decided to appeal and continue fighting. After we brought independent national surveys, linguistics experts, in over 3000 asianamerican leaders standing up and telling the government they were actually run on the issue, we still lost. Wrong on the issue, we still lost. The government decided they knew what was best, so started asking so we started asking questions. Slant is an inherent racial slur like you think it is, why have you registered it so many times before, literally thousands of times . There are hundreds of applications for the term, but many of them being registered. Mine is the only case in u. S. History to be denied slant on the grounds that it offends asian people. Therefore, there is an association of the disparaging term. They said we are too asian. [laughter] in their mind, you go to our website and look at our pictures and clips of live concerts, people would automatically assume the racial slur because of our ethnic identities and not any other possible definition in the dictionary. But it is really more of a convoluted way of saying anyone can register slants as long as they are not asian. Once i heard that, i decided we need to continue fighting because the government, even though its intention was to protect marginalized communities, was actually using peoples race against them. Political identities, sexual orientation, gender, and anything that was considered controversial by the government would be grounds for them to deny us rights. And so we appealed. Eventually won the federal circuit. The Supreme Court ruled that the law was being used against us was unconstitutional. Nine of the 12 federal judges agreed that we should have the right to register our band name. Beyond that, we kept fighting eventually went to the Supreme Court, were we were victorious. One of the few unanimous rulings in Supreme Court history. 80. Every single justice agreed that the law was unconstitutional. Not only was it unconstitutionally vague, but it was also engaging in viewpoint discrimination. For me, this experience has been exciting, inspiring, and incredibly frustrating. They reminded me how important it is to protect free speech. A lifetime stop people present this false dichotomy that you need to have civil rights in one corner and Civil Liberties in the other, but the reality is that if you want to protect civil rights, you have to begin by protecting Civil Liberties because those tend to be the rights that marginalized groups do not enjoy the most. We cant have the government winners and losers in terms of who gets protection, who gets to have the Fire Departments serving them when a house is on fire, who gets protection during a protest, or even who gets to register trademarks or not. The government is there to protect us, not infringe upon our rights. So i am thrilled that the decision was made and unanimous, striking a resounding chord. It was bipartisan. We all have a vested stake in the rights of the First Amendment and how important it is to fight for those rights. For me, i believe i will continue fighting on behalf of marginalized groups because that is what i am most passionate about. If and when those skirmishes and issues intersect free speech, i definitely know where to stand on that, so thank you so much for listening. [applause] thank you, everyone, for coming. Thank you to heritage, tiffany, for the beer. I know flying dog is actually from colorado, too. This is the brief that i got signed by simon. I will be auctioning it off later. I wrote a good part of this. It is on behalf of gedo and a basket of deplorable people in favor of the band. I had a particular expertise writing for this group because i have been in offense of bands and i know a lot about offensive music. They came to me and said you could write all of the band names and every thing you want to put in here. That is what i did. It is important because we are talking about what bands are communicating with their band names, and i think this is an underappreciated part of this case. The slants communicated an ethos that they approached. You think of bands, queen is another one where they are trying to take it back. I spent a lot of time trying to tweet to get them to sign on to our brief, but they did not return my calls. We have other band names that communicate what kind of thing is going on. The sex pistols, rape man, i highly suggest that one, a 1970s r b band, dying fetus. Here is an important thing about this. Dying fetus is not a cover band. I am sure you are not surprised. There is not a string quartet. The slants could have called themselves 4 Asian American men who are respectful to our diverse city as an american nation. If you went to their concert and saw them play chinese lyrics in one of their songs, you might be very offended that a band called 4 very respect for Asian American who are respectful of our diversity as an american nation. That is an aspect to naming your band the slants, which simon did a good job. Not just the slants. Many organizations have adopted and taken on the names that were given to them by other people. This includes the jesuits, the mormons, the quakers, the yankees, impressionists, suffragette, that was an insult also back in the day, and the appropriation of words, all these things. And brings very interesting questions of how we deal with this. We have some footnotes, including the seinfeld where jerry suspects that somebody converted to judaism so he can tell the jokes. He makes fun of catholics. He is to be catholic so he can do that. You can tell just about anyone, which winds of discretion. Because they are Asian American, this is particularly bad. They could not name themselves the slants. This brings up a south park seen that we quoted about how who decides for the community of color like asianamericans or africanamericans that we are offended . Pto was trying to say we think asianamericans are offended. That is a great episode called with apologies to jesse jackson. I want you to know that everything is cool now, the apologize to jesse jackson. Jesse jackson said it is ok. He told my dad he was. You have these problems about who can validate one of these disparaging remarks, and it is definitely not going to be the pto. To talk about the decision itself, it is an interesting decision with multiple parts. Three decisions. From one interesting point, we got Justice Alito, was my biggest concern in that case, coming out for free speech. If you know about his jurisprudence, he has not been very good on what we generally called offensive speech. Part of the Westboro Baptist church case, he wrote a profound commitment to debate is not a license for the vicious verbal assault that occurred in this case. In a case about videos about animals being crushed, he said the Court Strikes down in its entirety a statute that was enacted to prevent horrific acts of animal cruelty. In u. S. Versus alvarez, a case about a guy like that he won the medal of honor and several other awards, he said the lies covered by the stolen valor act have no Intrinsic Value and merit no First Amendment protection. You see Justice Alito has not historically been good to free speech. For him, he saw this as part of the Political Correctness movement. I put this in a line with walker versus confederate veterans, which is a case about whether or not be state of texas can deny a Confederate Flag license plate in a robust license plate system. And is not always turn into a balancing and proportionality test. He did not have a jurisprudence of portion only. Freeform balancing test. A case like reid versus talbert, he rejected the mechanical use of categories for basic analysis, which is a balancing test that is hard to predict. The justice came on and said we will protect this and not have a multifactor balancing test. The course did not fall to Political Correctness, which is a very big thing we talk about now, but i think this is important because i did feel the redskins case hanging over them in this question with a very heated time where people do not like a lot of what people are saying, and they get upset. That did not affect their decision that this was not unconstitutional. We have the government speech doctrine, which is another important part about this. One of the arguments the government made was it is hard for me to say this industry face, somehow trademarks were a government speech. You know that the texas license plate case, that is what the gone to the great extent we have gone to celebrate 125 years of the court. I promised that i would be brief. [laughter] today real purposes i am delighted to report the hard work and the cooperation over the past three years exceeded all initial expectations. Said, maybe we will do three events. We had never thought about the biographies. The anthologies. Court is proud of the work of the Committee Members on this important initiative. I am concerned about over leaking overlooking some people. I have thrown a brevity out. I will try and mention everyone deserving of this. Judges newman, walker, jacobson, the clerk of the court. Attorneys. Staff. He circuit librarian ability tong in his put beautiful morals in the hallways. Professor barrett. Cardoza. John if anyone is a true historian of this court, it is john. See more. Seymour. Professor whitt from yale. I would ask all the members of the one 25th anniversary standtee, i ask that you to be recognized. Stand up. [applause] that was a very short stand. This was the very first case i was the only one who voted for bob. Her, op no one agrees with anything i say. We conclude with the special session of our court and a lecture to be delivered by ouras merrill, who sat on bench for three decades. It is fitting we take note of the remarkable hands, who have been involved in the jurisprudence of the court in this very building for many years. One of the great benefits of the one 25th anniversary was that it afforded the court an opportunity to partner with familiar friends, and to make new ones. The patent bar sponsored the november 2016 program. A wonderful program. Thank the New York County lawyers who presented this wonderful award. And the commercial division in the federal and the federal litigation section of the new york state bar negotiation. Above all others, i want to thank the court staff, who have , turning thessly vision of the one 25th committee into reality. Staff, the hardworking we would not have been here to have this discussion, which was nothing short of extraordinary. There have been exhibits depicting many of the important again, with court, the early patent cases and the publication of the pentagon papers. The appeals are divided into several areas, and perhaps in recognition, the next month is the most important baseball month of the year. We have a very distinct Southern District judge who happens to be visiting with us today. After we conclude, we can go back to the reception in the main lobby. We recognize the Exceptional Talent of our librarians. And john. Here is to the staff attorneys andand the lock irks the law clerks who drafted the. Iographies and redrafted them here is to the clerks office, some of whom served at ushers as ushers at our programs, and to the i. T. Staff. Also, in our overflow courtrooms. We had them for almost every single courtroom we presented. And our colleagues from the Administrative Office in washington. Webcasted almost every single program, including the lectures of today. They allowed everyone to watch the one 25th programs. 125th programs. Certificates, receptions, 5th a terrific 12t anniversary swag or bling throughout the year. I want to acknowledge the hardworking staff and supberb utive staff. Ur exectuv superb efforts of the executive staff. Certain executive alumni. Importantly, the major domo who handed out all of the security memoranda. And was in charge of the swag. Year for was a hard all of you who are listening. It was spectacular. Proud andrdinarily grateful. The circuit staff is probably hiding in the hallway. Please come in. [applause] i am told they are presampling the hors doeuvres. Through the last few years, there has been one constant. Whenever there has been a challenge or a detailed to daily calls, and in many latenight emails, she progress ofn the this wonderful endeavor. I want to express my thanks to her. Please, come forward. The one 25th anniversary year was an important one in the history of the court. There have been opportunities to on the challenges of the future. Those of you who joined us will return to future events in his and is rich traditions. Thank you very much. [captions Copyright National cable satellite corp. 2017] thank you for your externa contributions. For your extraordinary contributions. And thank you to all involved in this project. It is my great privilege to , whoduce Thomas Merrill will next deliver the hands lecture, created during the tenure of my predecessor, named after his first cousin, augustus hand. Dedicated to examining subjects at the interest of the judiciary and the bar. Professor is a scholar of wide range. He is a preeminent property law and Administrative Law scholar. He has authored a series of articles related to the structure of Property Rights and optimal standardization in the laws of property. There is a meeting case but, leading casebook, property principles and policies. He has written a number of important articles in Administrative Law, and about judicial review. Indeed, i recommend his writing in the recent bibliography of my book. He was a deputy and the department of justice in the late 1980s. He previously taught at northwestern loss call. From 1981 to 2003. He is a member of the American Academy of the arts and sciences. He is a member of the u. S. Court of appeals for the district of columbia circuit. He has served as the visiting scholar at the university of chicago loss call law school. He graduated from you from university of chicago law school. Graduated from oxford, where he was a rhodes scholar. He graduated from cornell in 1971. Lecture. Ow [applause] prof. Hand thank you, chief judge. Honorable members of the Supreme Court. Friends and guests. Honor for megreat to take part in the celebration. Theone 22nd anniversary of second circuit, and to present the hands lecture. Known as thebe hand court in the 1930s and 40s. I am guessing, a number of them might have been disturbed by the name. Disturbed have been bythe other examples given trevor and all of those. None of the justices were fond of those names. This has been hiding behind i was asking about the circuit judges. All of that audio is up for grabs. Any Circuit Court does have video. They are subject to massive criticism. I am talking about the federal court. Where the case began. The judge overstepped the boundaries. You had to take it to the Supreme Court. Judge, istrict level wish they had been a little more aggressive. Statute, there has been their generic views of the world and the law. You can bring into your background any decision you make. A person with a more libertarian background would have made their case in the first place. I think the lack of public scrutiny, that judge got hammered for these decisions. The Circuit Court came around and did the right thing. Do i think the bureaucrats if your question had been, i think they can get away with stuff. There is less scrutiny. I spent so much of my time jumping up and down and yelling about why circuit judges this boggles the mind. A great panel. They can offer being here. Understandtrying to the conflict you are seeing in terms of hostile Work Environments. We can talk about the government being a sensor, choosing sides. Clear, if you take it inside, to a workplace setting, the government could set reasonable matter restrictions. There is a lot of stuff the government censored that would have to go into a public library. That would create a hostile Work Environment. Im seeingte sure the governments inability to center the step, when it is out there to censoir this stuff, when it is in the public at large. Youll be punished in the context of a private employer for displaying things in your Work Environment that are hostile to a particular race, religion, or nationality. It would be employers imposing this on their own. When you have an employer that i have posters of natifve over, theall government doesnt say, if you dont take that down, youre going to be sued for being hostile to native americans. Alito seems to be hedging his bets. He is holding the sovereignty side, as he doesnt want to say anything that might threaten hostile environments, based upon speech. Pick your group. Catholics, blacks. You can come up with a dozen examples. And then, the governm,enent stes in. That is restrictive behavior by the government, that we would continue to enforce. Version of this does its best to 22 to try to preserve it. At that point, could you have public accommodation that says, down with native americans . They are terrible . I dont think you could. How does that play out . The use of these trademarks could be hostile to employees. I want to ask, related. Is another provision of this, still out there. Matter that is part of trademark. This is just as bad as disparaging. You, for a great panel. Owner, youss mentioned you were threatened with criminal prosecution. How does that affect your private business . How does this affect you as a whole . I sleep like a baby and wake up every hour, crying. Keep in mind, what we received from michigan was without registration. It just slipped through. We didnt know it wasnt approved. As you correctly pointed out, bureaucrats have been making these decisions. There is a glut of risk out there. Out tre is a lot of risk here. Anyone else . Wait for the mic. Think it should be a concern to everyone what you are about how people could create a situation for the owner of the business. I think that is a real issue. Trying to create bigger issues, because of the climate we are in today. It,ther employees come into you dont have complete freedom. The playboy centerfold, or whatever it is you would care to they would use that as a hostile Work Environment. It does have freespeech implications. Have we run pass those in the last 50 years . We have. We may revisit them in the future. Alito said, we wont open up that can of worms, because once you do, it is a big can of worms. We have a lot of big statutes. Difficulties if you look at view research. Wrong,t i think it is just that we may not be willing. Another question . I think it is great you set program after your experience. There appears to be a disconnect , of free speech on campus. Whether the group you are now heading up, this program that talks about the importance of the First Amendment, whether you engage with students in what their views are. I do on a regular basis, i participate in freespeech events with students for liberty. It is a really big issue. Students dont understand the principles of the First Amendment. It is not as if they truly understand what those are and the second, this blurring among students of the right to free speech versus the value of courtesy and respect and trying to balance that out. You see that as very blurry. Encourages being open to better understanding of rights versus values. I spent as much time as possible and never turn down the opportunity to speak on a college campus. It makes me feel like i am 100 years old. Please join me in thanking the panel. [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] cspans washington journal. Every day, with news and policy issues. Will discuss president trumps relationship with congress. And sean hopwood will explain his fight for justice reform. Into the real reasons nfl players neil during the National Raise awareness about Police Brutality and racial injustice. Watch washington journal at seven eastern sunday morning. Close your eyes. Stretch. Close your eyes. I see you. Empathy. Stretch your imagination. [explosions] open. That is how fast it happens. In a blink. No warning. And a. Retired u. S. Marine corps aboutr gillams jr. Talks his work to help paralyzed vets. This is the problem. Ais is what i see from patient and policy perspective. From an advocacy perspective. This is what will make the Veterans Administration the ideal provider. Sunday night at eight eastern. Kalbrmer reporter marvin moderates a discussion with the executive editors of the washington post, and the new york times. This is one hour and 20 minutes. [applause] marvin hello, and welcome
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