Mobile devices and sounds are turned off as he began and of course anyone watching on line is welcome to send a question at any time simply emailing speaker heritage. Org protesting our discussion this afternoon is Tiffany Bates legal policy and on the at our center for legal and judicial studies. She researches and writes about courts judicial nominations and other constitutional issues. She is also cohost of scotus 101 podcasts. She is a regular contributor to the daily signal media organization. She also coordinates the appellate advocacy program. Please join me in welcoming Tiffany Bates. Tiffany. [applause] thank you and welcome to Heritage Foundation and thanks for joining us to celebrate free speech read by highlighting recent First Amendment victories and hopefully as we will discuss later on the courts. Ill keep my remarks short so we can get to what we are all here for, the beer. This summer the Supreme Court reiterated that are free speech jurisprudence is that we protect the freedoms expressed. Love the freedom of speech has long been the core of our free society it is recently come under sharp attack through the courts however have pushed back over the last few years continually extending First Amendment protection for what someone called today we will highlight three cases. First to hear about Flying Dog Brewery a sixyear fight with the Michigan Liquor control commission after tonight flying dog applications to register a beer label to one of my favorite beers. We will look at a short video from simon tam of the rock band that took their case to the Supreme Court. After the Patent Trademark Office refused to enter their trademark. In a unanimous judgment they found that violated the First Amendment. Justice alito wrote a law offense bedrock First Amendment principles. Speaking speech and of the band on the ground that oppresses ideas. Finally well talk about the fate of the Washington Redskins trademark that the government canceled under that same clause. After the Supreme Court handed down its opinion in june all parties and the department of justice. The case control the position of the case in the court must enter judgment. Four months since the fort Fourth Circuit has not done so. His m. Are trying to distinguished the case in order to rule against the redskins . We will explore the future of free speech with a great panel of experts. Jim caruso ceo and a Flying Dog Brewery. Flying dog is a 32nd largest brewery in a country known for its worldclass beers combined with distinctive label art created by an artist. Jim is as passionate about this First Amendment as eight is the beer he produces. 2015 damages after his court battle jim found the First Amendment society Nonprofit Mission to raise Public Awareness about First Amendment principles. Jim is a recipient of numerous awards for his dedication to the First Amendment. He also fasteners and a masters degree in economics at the university of missouri and holds a degree in brewing science from it its a two. Trevor burris is a research in and the center for cottagers and studies and managing editor of his research enters into constitutional law civil and criminal law legal law and legal history. His writing an Academic Press appeared in many journals across the country. Hes also the cohost the free that a weekly podcast that covers the topic, covers topics in history and philosophy via trevor holds a va from the university of colorado and a j. D. From the university of denver. Finally erik jaffe is an appellate litigator with the practice covering a wide variety of these issues in state and federal appellate courts. Since starting his practice in 1997 eric has been involved in a broad range of legal issues including the first second fifth and 14th amendment and other state and federal constitutional statutory matters. Eric has been involved in over 100 Supreme Court matters including search petitions representing half a dozen parties and filing over 60 amicus briefs. Eric holds up dna and genetics at Dartmouth College and a j. D. From columbia. He served as a law clerk for Justice Ginsburgs ginsburg and Clarence Clarence thomas on the Supreme Court. Thank you tiffany for inviting me to be on this panel at thank you for the Heritage Foundation for the fine work you do day in and day out. As most of you know and probably better than i free speech as we know it today didnt really exist before the 1960s. Im a child of the 50s so i have observed the First Amendment law and by the 1970s i 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 constitution is floyd abrams describes it master forgets a foundation of freedom or intellectual freedom Political Freedom and economic freedom. Where the First Amendment and might just as intersected was first in 1995 when released the beer road dog with the original label art by the International Famous artist ralph stennett. We knew ralph threw hunter s. Thompson and ralph was painting this label live on the bbc. Theres a fun back story behind it but and partly an effort to put the bbc little bit and is a related to it that hunter wrote for the release of this beer he scribbled on their in his fountain pen font good beer, no ship. [laughter] we received a label and he loved it. We released it in Denver Colorado and it got huge press for the beer and the distinctive label in 1995 but a competitor complained to the Colorado Liquor Commission that the word was an obscenity so the Colorado Liquor Commission agreed and demanded that we removed the product from the shelf or they would suspend their license. So we pulled the quarter Million Dollars worth of gear from the shelf rerelease the beer was good beer no censorship. Not surprisingly sued the Colorado Commission and the Supreme Court overruled that shit is not an obscenity. Into that family released a beer again, thank you ralph with the original label art and the name of the beer is raging bitch pities you may or may not know it varies by state. They were teen administrative unbeknownst to me this beer was not approved for sale and it was rejected. We had ship some. It was a mistake to michigans response was clear and immediate immediate. If we dont remove the beer from the shelves within 24 hours the state police with the sent out to confiscate it and not 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 our constitutional freedoms we should be somewhat concerned with some of the reasons they gave for not liking this beer. Unlike anything about by the way. The name, the art but some would reason at the appeal hearing word that Oprah Winfrey did not allow that word on her show. Wonderful. I am waiting for a reference to the constitution because they have assured me its not an issue. Another thing that they told me was the Westminster Kennel Club no longer uses that word to refer to female dogs. Okay, i get it. They also said it had to be removed from the shelf because the mere passive observance of this beer on the shelf will entice people to violent action. What i didnt know at the time was that for years they had rejected the michigan control had rejected any big beer wine or spirit that had the word bitch in it simply because they didnt like the word. The government cannot suppress speech just because they dont like the topic did not surprisingly we sued the state if michigan the Michigan Liquor control commission and as individuals produced in the Western District and the ruling was in favor of liquor control for consumers both cause i judicial and judicial. Basically saying not sure if this is a violation of your rights but it doesnt really matter because you are immune from these two. That was then appealed to the sixth circuit and after four more years of waiting the circuit ruled unanimously in our favor with the dissenting vote concurring opinion further saying not only are they liable to be sued for a violation of possible violation of the First Amendment rights but they in fact it a clear blatant we went back and settled with michigan and i use the proceeds to create the First Amendment society and nonprofit. It was rather new but we have been down the Speaker Series family of constitutional series, law professor speaking about everything from ftc regulations to issues relating to the First Amendment. We are sponsoring a scholarship for Investigative Journalism at the university of maryland working in conjunction with a lot of groups to speak at free speech events and acknowledge campuses so this is a big part of what we do. Why is the brewers are talking about the First Amendment . Because i have spent 12 of the last 22 years in litigation or in court suing because they personally didnt care for a beer label. [applause] next we will watch a short video from simon tam. Spin hello from Sydney Australia australia. Im the founder and bassist of the worlds first all asianamerican dance rock band and im sorry i cant be there in person with you today. I started this band over a decade ago because i wanted to create something that would empower asianamericans but it ended up being something bad that took me into legal battle that lasted eight years against the u. S. Patent and Trademark Office. The reason we chose the band name so long ago was because i wanted to change something it was a point of shame to music into an empowerment as an adult. The stories of me surviving being elite would resonate with other marginalized communities who also had a difficult time with their identity. We wanted to reappropriate this outdated and obscure racial slur wasnt that popular to begin with. It was used as slanted eyes against asianamericans but it was at term that our community community. We thought it would be perfect that it sounded like a band that that we applied for this trademark eight years ago because its something really important for fans to do. As you are making National Headlines you protect your brand. The whole point of the trademark system is to protect consumers. There were 10 bands out there with the same name so we traded the system where a protected International Property rights in a major there werent volunteers. If you buy a concert ticket to see one band you can be assured that it is the right and. So it hasnt traditionally been a place for government to decide morality on. If you meet the requirements for your business you should be able to have a legitimate business and protect those interests. That simple process change to a much larger fight when the government decided that they would know whats best for the asianamerican community. They told me that the word slant is disparaging to the persons of asian descent even though it had no place in our community. For the government to deny you rights based on this kind of claim they have to find a substantial composite of the group to find it offensive so in this case asianamerican but throughout the last decade they did not find a single asianamerican upset by name instead of relying on web sites, asian jokes. Com and pulling from anonymous post lines. When we decided they wanted to strip the agency of our ability to determine whats right for ourselves we decided to appeal and continue fighting. After we brought the independent National Surveys linguistics experts including one of the editors of the american oxford dictionary and over 3000 asianamericans were standing up and telling the government that they were wrong on the issue we still lost. The government decided they knew what was best so we started asking questions like this if this slant isnt here racial slur why is it registered. There are literally thousands, literally hundreds of applications for the term slant and many of them were being registered. Mine is the only case in history to be denied slant on the grounds that it and we asked him why that was. This Trademark Office road is in contestable that the advocates of asian descent therefore theres an association of the disparaging term for it afterwards where to asian. If you look at our pictures and live concerts well people would assume the racial slur because of our ethnic identity and not any other possible this definition. Its a more complicit way of saying anyone can register for slant as as they are not asian. Once i saw that i began fighting because the government even though his intentions was to use protect was using peoples race against them. They found that the case, anything that was considered controversial by the government would be grounds for them to deny us rights. And so we appeal then appealed and eventually one in the federal circuit. The Supreme Court ruled that the law was unconstitutional. Obviously if you think of other bands, trying to take it back to be clean is another one youre trying to take back. Im spent trying to tweet with them but they did not return my calls. But you have other ben names that communicate what kind of things are going on. The of the pothole surfers, smash in the poon tanks, and r b banks, pussy galore, and heres the important thing, its a well covered band and im sure not surprised and they are not a String Quartet and of course there never open for paul now they couldve called themselves for Asian American men who are respectful toward diversity as a nation but i guess if you into their concert and saw them play chinese one of their lyrics its chinese, japanese, dirty needs a look at these you might be very offending that theyre playing something so offensive to you. Theres a communicative aspect ten naming your band which i think simon does a good job. Snatches the slant, Many Organizations have adopted and taken on the names there given to them by other people, this includes the jersey was, the mormons, the quakers, think about the yankees, suffragette was back in the day and of course things like pitch, queer, cracker, pastor, brings interesting questions. We have some footnotes including seinfeld or jerry suspect someone has converted to judaism so he can tell the jokes. So i can say that because then he makes fun of catholics and he said i used we catholics i can do it too. They said you can tell jokes about everyone which because there Asian American this is particularly bad that they could name themselves this. This brings up a south park scene about how we decide who decides for the community of color of Asian Americans, who decides that were offended. Theyre trying to say that we think of Asian Americans as offended theres another one called with apologies to Jesse Jacksons which says hey i just want you to know my dad apologized to jesse jackson. So im supposed to feel better now. Jesse jackson said its okay. You have these problems about who can actually validate one of these disparaging remarks and its not going to be the pto. Just to talk about the decision itself actually is three decisions we have Justice Samuel alito coming out for free speech which if you know about his jurisprudence his not been good on what we call offensive speech. He wrote are performed to National Commitment to free and open debate is not a license for the vicious assault that occurred in this case. In the u. S. Stevens which is about videos about animals being crushed he strikes down innocent parody of valuable statute to prevent horrific acts of animal cruelty. The and alvarez was a case he said the lives covered have no intrinsic valley and those mayor no First Amendment protection so he is not historically been into free speech. I think for him esau the says part of the Political Correctness. I put this in the line with the walker which is about whether the state of texas could have a license plate and a very robust confederate flag. Another thing that Justice Breyer doesnt always turned everything into proportionality test which i think its good. He would have a jurisprudence and everything will be weighed and then he rejected the mechanical use of categories but Justice Breyer came on and said were gonna protect this not have a balancing test. In the court did not fall to Political Correctness which is a big thing we talk about now but i think its important because i didnt feel the redskin case hanging over them in this question of a heated time where people dont like what others are saying and they get upset. That did not the government speech doctrine is another porton part. One of the arguments the government made was that somehow trademarks were government speech. Now, you know the texas license plate thats what the court ruled in that case, the strange association of Justice Thomas and license plates are government speech. Now, this could push a free speech doctrine because government speech is allowed to be discriminatory. Its one thing if the government is putting it up that the government was putting up propaganda posters are things telling you to save water theyre under no obligation to let someone put up posters that say the opposite of that. If we expand government speech it gets dangerous. So then in that case am a big oklahoma sooners fan so then you can get that in texas. But you can get an oklahoma sooners license plate in the state of texas. That means the state of texas is endorsing that. What happened is that they didnt even really entertain the fact that a trademark could be seen as government speech. Walker seems to be the outer limits of the government speech talk thats a good thing there too. In general we had a good assertion that the speech was protected didnt look twice at that and despite leftwing College Students the Supreme Court affirmed that it is protected and it continues a general trend in terms of agreement weve seen free speech get more protected by the Supreme Court cases that were more extreme. So its a great teaching case. Its always important to teach about the First Amendment. Ive done one session with a group of High School Students who were gonna run this with their class is teaching them just the facts, its a great teaching case. Theres one thing we need more is more teaching and more discussion about the First Amendment and how important it is for people to protect themselves. A sense of speech and dispiriting speech is not protected by the First Amendment the First Amendment doesnt mean anything. If you Say Something popular you dont need protections from the First Amendment. The people need to understand is the fundamental doctrine if today you, churaumi. Today you might say were going to certain down your speech in some way but tomorrow its when to be me. Hopefully we can hold the line against an expanded speech doctrine and i congratulate simon and his band. I dont think theyre the first allamerican asian rock band but ill given that could as he went to the Supreme Court. Thank you. [applause] ive been given the incredible brief task of telling you about the redskins case. I assume if you are in the vicinity of the washington d. C. That these are disparaging and after this came down everybody in the case agree that a controlled and the redskins win. Pro football agreed and even the challengers a great that it unequivocally controlled. That was in june or july. July. So i suppose it begs the question about what is it thinking about. One can only hope that they are distracted by something else. I call the lawyers in the case whose alert for pro football and said whats up. Why are they not giving you your order. She said she had no idea. And just a shadow, lisa does a certain type of appellate law which is Program People in eyes that she doesnt care if they dont like being told so. So kudos to her. If you thought his litany was bad just go read her brief. A litany of trademarks was really something. So lets speculate, unabashed speculation on what could be going through. I suppose theres two reasons why you might delay issuing the obvious order. One is because they think they can remand the clearly after a man, because the rationale are clearly wrong. But is there breathing room to come to the same result on a different theory . I suppose i see two possible paths. One of which is a function of the unappealing commercials Speech Discussion in Justice Alitos opinion which fortunately Justice Thomas rejected outright of the other justices rejected outright. But, Justice Alito in attempting to distinguish the disruption of commerce. Discrimination said even if it were true its not narrowly tailored. That can be fixed. Potentially by the pto issuing a new ruling saying we construe the statutory command to only reach this tiny, narrow area of offenses given to minority groups that are subject to traditional verses of discrimination. The reason to worry about this a little bit, i think the Supreme Court would smack them in the head if they did that, but i worry about it because the implications arguably apply to a hostile environment so is it now hostile environment to post a cover of this in my cubicle at work or have redskins were more offensive sign up in my cubicle that would defend various groups at work. I think thats a closer call under the current law, in my freespeech world the answer is obvious, you cant fire me from having offensive signs even if its at work. Thats not todays law and probably not where majority of the court would go. So why is it you can make a similar argument that its offensive to native americans might attend sporting events just like any other public event. To have a hostile environment that called them redskins. He certainly cannot have the type a Baseball Team and not get smacked around in that suit. So may be there thinking of doing that to narrow it if it wasnt sufficiently narrowly terror to more direct antidiscrimination purpose. The other way you can go there is, i hated the discussion of government speech. I think the whole line of cases wrong and i think the First Amendment applies to government speech and allows it because it wins the ballot. But i dont think its categorically mean. Im a minority in a pretty sure nobody else would. But, the speech even described by Justice Alito the pto did not exercise sufficient control. They said fine will to censor a little more. Consequently elisa government speech. Its sort of ignored and it treats it as endorsement when you give speech right to editors who dont necessarily endorse while excluding others. The classic example is hurley in the st. Patricks day parade where they included some groups nobody imagine they are endorsing every group but they could limit the field as editors. To the extent that its acting as an editor not a direct speaker, i dont know why there would be exercise in their own speech rights. I took some encouragement to the fact that alito didnt want to go there and try to narrow it down. He narrowed it down in a rehnquist like way which is, all thats different. Oh, i have a case that the logic would go here there. So next paragraph, thank you very much. Sometimes as my wife reminds me things are not neat and clean and sharp. But theyre messy and gray areas in dealing thing you have to say is i have to draw the line somewhere. I know its not perfect so its different. And i felt that alito did a lot of that and in his attempt to distinguish the union cases. So, perhaps that is what the Fourth Circuit is thinking about. One can only hope theyre not its merely an Administrative Task that they lost track of. That doesnt sound like a credible explanation though. So, i fear theyre trying to come up with a way to remand it. I give time for them to narrow the law and the re justified the results. Thats all i have to say about that case. Its literally impossible to distinguish other than the quality of workplace environment. But beyond that, its hard to see. Theres much to be encouraged as seems like the speech is good mark to free speech doesnt mean youre offended that i worry about the hostile environment competing line of cases and i guess ill stop and let you have a chance to talk to. [applause] questions. To questions, although i dont want to put you in a bad position, my first question is the members of the michigan licensing board who made that idiotic decision, do they still have their jobs . The second question, my understanding is beside the Trademark Office theres a third problem which is there is a story that came out not long ago about a single bureaucrat inside the u. S. Department of treasury restroom approve every single beer label in the United States theres people say that he makes arbitrary decisions but everybody in the Beer Industry is afraid to criticize him because he has absolute power so after trevors recitation of the bad names i feel like its sort of boring. So i dont know if theyre still in that position, we build our marketing into the label. These are just commissioners and this is been a problem for decades since prohibition of the states took over the regulation of alcohol, theyve exceeded the authority. But its expensive and difficult to sue the state. So the fall of your talking about, it used to be the atf the alcohol tobacco and trade bureau, theres a Single Person that looks at the labels and determines if they meet the legal requirements, the statements about health and so forth. And to make sure theyre not obscene. But obscenity is pretty loosely defined. What are labels first started coming through there a lot of questions. After about six years when he would see the seven labels come through his comments was, just let it go. But, its an arbitrary process for decades we looked across the country they have taken it upon themselves to reject labels that they dont like and its a blatant violation of the First Amendment. The rule of bob smith is the law here. And for us the idea back in the day craft beer was new, it wasnt that exciting from a label standpoint. We viewed beer as liquid art we had the good fortune to be connected to ralph hes been doing original art for us for the last 25 years. Its my infringement on my ability to communicate with my customers if i can call my beer however i wanna call it. And find a is part of the basket of deplorables. Lady justice is blind. And our judges are supposed to move blindly, not judging his on either side and not put in their personal opinions into the courtroom. To feel the now that were not allowed to bring phones into the courtroom, not allowed to bring computers into the courtroom, no cameras in the courtroom, our judges are hiding behind their benches and chambers that these two cases ended up the way they did because the judges afflicted their own personal feelings into them. The longer version of that is, theres audio and transcript of every argument in front of the court. They get criticize from every direction on the planet and if i had to guess im not sure the results is necessarily the way many would come out as a matter of personal defense. Im guessing number may have been disturbed by the name. Im certain they would of been disturbed by the other examples given both by the pro football brief, pretty sure none of the justices were fond of those names. I dont view it as them hiding behind. The Fourth Circuit once all that audios up for grabs, many Circuit Courts to have video where you can watch video of that and once again, there subject to massive criticism. I thought you meant just the lack of those in the courtroom. Will when the case began in as a judge do you feel like he overstepped his boundaries because he took it to the Supreme Court nose overturned . The district level judge, while i wish may have been a little bit more aggressive in defending the First Amendment, at least they said theres the statute in the District Court judges but their generic views of the world on the law so do i think its a bias in a war sense, no. But i would wish a person with a more libertarian background would heard the case but, did as it may i dont think that the lack of publicity, that judge got hammered for these decisions. The Circuit Court i think came around and did the right thing. And the redskins case while they didnt rule yet, do i think the bearcats might be subject to yes to a think them in the executive branch i think i can get away with it because theres less scrutiny the answer is yes but i think thats true of judges . I spent so much my time yelling about why some Trial Court Judge circuit judge cut it so wrong that it boggles the mind, i think theres plenty of on their board that decision. Its a great panel. Thank you for being here. Eric, im trying to understand the conflict youre seeing in terms of possible hostile Work Environment. This case talks about the government being a center in choosing sides when it does not involve government speech. That seems clear. Seems that if you take it to a workplace setting the government could set reasonable restrictions to whats getting done. Theres a lot of stuff that a government would say has to go into a Public Library the very clearly would create a hostile Work Environment if you took photos out of a magazine or exerts out of a book. Im not quite sure obscene why the governments inability to censor the stuff when its out there in the public at large the government censoring it poses a problem to people in a Work Environment. In the context of the government say to a private employer you will be punished for allowing your employees to display things that are hostile to a particular race, religion or nationality theyre not acting in a regulatory fashion. They would be employers imposing it on their own because theyre controlling their incivility. But when you have an employee that says its fine to put it up and i love the redskins and i have them all over in the native american comes up and says that the hostile Work Environment the government doesnt come in as regulator unsafe you dont take that on your liable to be sued for discrimination against the native americans were being hostile. The reason i worry about this is because alito seems to be hedging his bets about this. It seems like hes holding it on the side because he doesnt want to say anything that might threaten hostile environments based on speech or offensive speech. Pick your group, arabs, jews, catholics, hispanics, you could come up with a dozen examples of someone being offended that the bust is a force to be removed and the government steps in. And that is restricted behavior by the government that we would continue to enforce an alitos version of this elyse recognizes that attention. Thats where think you could treat the redskins not as a speaker but as an employer in public accommodation. At that point could you have a public accommodation that says native americans are terrible at i think you could get sued. So how does that play out with the redskins and could you go after their trademark by saying the youth of their trademark this hostile to their employees or customers. I dont think this is what the Fourth Circuit would say but theres another provision that still out there that prohibits scandalous matter except for the deceptive part scandalous is probably just as bad. Thank you for a great panel. I wanted to ask, as a Business Owner you are threatened with criminal prosecution by government actor. How does that affect your Business Practices of the violation of the First Amendment affect to as a society as a whole. I sleep like a baby. I wake up every hour crying. Keep in mind the expense of this administration. While we received was a letter without a Registration Number for the beer. It slipped through. We didnt know it was not improved. The laws on the books are that if you ship a beer and is not registered on the state its a felony. As you correctly point out individuals and regulators point to bureaucrats. And a lot of cartels. Anyone else with a question . Please wait for the microphone. I think it to be a big concern to everybody what youre stating about how people could all of a sudden create a situation for an owner of a business. To think theres a way to say that each person has to have an office within their space has the freedom to do what they want . Think its a real issue that i could see people bringing. In trying to create bigger issues because of the climate were in today. I think from the perspective even in your office space if other employees commensurate you dont have complete freedom. You cant necessarily put up the playboy centerfold or whatever it is that you care to put up. You cant put up a poster. They would view it as a hostile Work Environment and go after you. Does that have free speech implications . Yes. We rode past those the past 50 years . Yes we have. Will we revisit them in the future . Maybe. So i think thats what alitos last piece was about. When i can open up that kennel worms again. Once you open that can of worms thats a big canna forms. We have a lot of big statutes that have some difficulties if you let that view research. I just think we may not be willing to undo the work of the 60s. Thank you. I think its great that you set up the First Amendment series or program after your experience. There appears to be a disconnect in terms of opening a new area of free speech on campus. This program that talks about the importance of the First Amendment and whether you ever engage with students and kind of what their views are. I do on a regular basis. Earlier this week i gave a keynote speech on it was on the First Amendment, i participated in freespeech events on College Campuses and it is a really big issue and work its confusing the students not understanding the principle of the First Amendment. Its not as if they truly understand the principles and the freedoms what they are they dont understand it. And then this blurring among students of the right to free speech versus the value of civility, courtesy and respect and trying to balance that out. Whats encouraging on campuses that are liberal oriented is that they are open to better understanding rights versus values and you cannot equate the two by balancing them out. So i spent as much time as possible. I never turn down speaking at a college campus. Please join me in thanking me for a panelist. [applause] [inaudible] this weekend a book tv on cspan2, saturday at 8 00 p. M. Eastern former Vice President al gore looks at the effects of Climate Change around the world with his book, an inconvenient sequel, treat the power. We and our civilization, not me but the technologists and engineers are learning how to manage atoms and molecules with the same precision that they demonstrated that they can manage bits of information. Its changing things dramatically. The missions globally have stabilized for the last four years. Starting a downward trend. We are going to win this, but the remaining question is whether we will win it in time to reduce the risk to an