How I am ignoring the other statements? CLS v. Martinez is internally quite consistent; it reasons:
1. The registered student organization program is a limited public forum, because it provides a form of subsidy to the groups who participate in the program. 2. In such a limited public forum, the government may impose reasonable, viewpoint-neutral restrictions, but not viewpoint-based ones. 3. The requirement that student groups take all comers is a viewpoint-neutral – indeed a content-neutral restrictions. 4. Indeed, the program leaves student groups free to “express any viewpoint they wish – including a discriminatory one,” which protects “the freedom to express ‘the thought that we hate.’” If CLS is viewed as applicable here – if trademark law is viewed as a limited-public-forum-like subsidy – then it would follow that the exclusion of “disparaging” marks, if it’s seen as viewpoint-based (and I think it should be), is unconstitutional. Now of course some may say that CLS shouldn’t apply. The In re Tam en banc majority concludes that the trademark system shouldn’t be viewed as a limited public forum, but that the disparaging mark exclusion should be viewed as more akin to a direct regulation of speech, and that strict scrutiny should apply instead. Others conclude that the trademark system shouldn’t be viewed as a limited public forum, but that the government should be entitled to choose which trademarks it will support, even in a viewpoint-based way. But if CLS applies, then it bars viewpoint-discriminatory conditions on trademark registration, rather than empowering to freely decide which speech to “subvent.” Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Saturday, March 19, 2016 7:29 AM To: Law Religion & Law List <religionlaw@lists.ucla.edu> Subject: Re: In re Tam and CLS I think CLS has something for everyone on this case. We just cannot really predict with confidence what tack the Court will take. I agree that the court could decide that disparagement is the sort of viewpoint regulation that it said was not at stake in CLS. But you cannot ignore all the other statements and reasoning of the court and think that just one aspect will surely control. Steve On Mar 19, 2016, at 10:04 AM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: If CLS is applicable, it would actually cut the other way. The rationale of the court’s decision is that, though the government must be viewpoint-neutral in funding student groups, a requirement that groups take all comers is actually content-neutral: “It does not reflect a judgment by school officials about the substance of any student group's speech. Nor does it exclude any would-be groups on the basis of their convictions. Indeed, it does not regulate expression or belief at all. The policy is ‘directed at the organization's activities rather than its philosophy.’” “Although registered student groups must conform their conduct to the Law School's regulation by dropping access barriers, they may express any viewpoint they wish—including a discriminatory one. Cf. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 60 (2006) (‘As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do— afford equal access to military recruiters—not what they may or may not say.’). Today's decision thus continues this Court's tradition of "protect[ing] the freedom to express ‘the thought that we hate.'” And of course the opinion is stressing here that even registered student groups, which is to say groups that get “what is effectively a state subsidy,” must be free from viewpoint discrimination. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Saturday, March 19, 2016 4:27 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: In re Tam and CLS Not really wanting to restart this issue, but in re-reading CLS v. Martinez, I came across this gem: "The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.” One can surely distinguish the cases, but one can also make the argument that registering a trademark is a benefit that the government can condition on non-disparagement and that the Slants “enjoy no constitutional right to state subvention” of its disparaging trademark. And how often does anyone get to use the word “subvention” anyway? Steve -- Prof. Steven D. Jamar Howard University School of Law vox: 202-806-8017 fax: 202-806-8567 http://sdjlaw.org<http://sdjlaw.org/> _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org "Love the pitcher less and the water more.” Sufi Saying
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.