That USPTO ruling about the REDSKINS trademarks

Just a quick note about that ruling by the US Patent and Trademark Office on the REDSKINS trademark.  (That’s how trademarks are customarily written in legal documents, by the way: in all caps like that.)  This is prompted by news stories about various Republican talking heads characterizing the ruling as “just another day in Obama’s America.”  In fact, the USPTO has been very clear on how they feel about this issue since 1994, when Clinton was President.  So they can blame it on him, if they want, but perhaps we’ve all moved on from Clinton at this point.

At any rate.  Way back in 1992, a number of plaintiffs, including a Native American activist named Suzan Harjo, filed a complaint with the USPTO about the trademarks violating a law that says that federally registered trademarks can’t contain “matter which may disparage . . . persons.”  (15 USC 1052(a), if you want to look it up.  Part of the Lanham Act, which is the fundamental federal trademark law.)  Actually, we keep saying “USPTO,” but the body that handles these complaints, which aren’t exactly lawsuits but resemble them pretty closely, is a special section of USPTO called the Trademark Trial and Appeals Board, or just TTAB to its friends.  In response to this disparagement complaint, the Redskins asserted a number of defenses, including things like First Amendment free speech, and also including something called “laches,” which is going to be important in this story and I’ll get to it in a minute.  But TTAB wasn’t having any of any of them.  In 1994, they issued an order saying “all of those defenses are bullshit” (though in somewhat more formal terms).  So that was basically the point in time where TTAB first indicated that it considered REDSKINS to violate the rule that federally registered trademarks have to be non-disparaging. But then, for reasons I haven’t found an adequate explanation for, they just didn’t do anything for five years.

In 1999, TTAB finally got around to doing the same thing they just did yesterday: they issued an order de-registering the trademarks.  Just another day in Clinton’s America.  But the team wasn’t done fighting.  (Insert sports metaphor about “overtime” or “sudden death” or “clock running out”; I don’t do sports metaphors, even in articles like this where they’d be entirely appropriate.)  They appealed TTAB’s decision to the next-higher-up court, which is the Federal District Court for the district of D.C.  And the District Court said “Hey, wait.  That laches thing?  That sounds right to us.”

So, laches.  It’s pronounced “latches,” first of all.  It’s an archaic French word, and that doesn’t sound very French, but that’s how we mostly say it.  What it is is the legal principle that once something happens that enables you to sue someone, you need to be somewhat prompt about it.  It’s a little bit like a statute of limitations, but loosy-goosier.  Statutes of limitations are very well-defined: for example, if I do something negligent and I injure you, you have two years (in California, anyway) from the date you sustained the injury to get to the courthouse and file a lawsuit against me.  If you get there in two years and one day, your lawsuit is not permitted.  There are exceptions, like there are to everything in the law, but that’s the general idea.  Laches, on the other hand, is the principle that you can’t dilly-dally around when you have a basis for filing a lawsuit, but there’s no specific timeframe.

Laches doesn’t come up very often, because for most things you might sue someone over, there’s a statute of limitations, and if you get your lawsuit filed within it, there’s ordinarily no basis for a laches defense.  (Sometimes, yes.  That’s why I said “ordinarily.”)  But in disparagement actions, it turns out there’s no statute of limitations; the statute says that the claim can be brought at any time.  Nevertheless, the District Court said that the plaintiffs, the people who had filed the complaint, Ms. Harjo and the rest of them, had waited too long to file it, because the offending trademarks were registered way back in 1967.  So in 2003, the District Court overturned TTAB’s de-registration order on the basis that the complaint was barred by the laches doctrine.

“But wait,” said the plaintiffs in their appeal to the next court up the food chain, the Court of Appeals for the D.C. Circuit.  “The laches defense doesn’t cut in until the plaintiff reaches the age of 18, because nobody expects kids to be hanging out in courtrooms litigating things.  And one of our plaintiffs, a guy named Mateo Romero, was a mere lad of 26 when we filed our complaint with TTAB.  So he only waited a piffling eight years from the time he was qualified to file the lawsuit.  Surely that’s prompt enough.  The laches defense doesn’t apply to him, does it?”  The D.C. Circuit thought that this was a reasonably good point, but deciding whether the laches defense applies involves an analysis of how much prejudice the defendant has suffered as the result of the plaintiff’s delay in filing the lawsuit, and for reasons I’m not going to get into right now, trial courts are better equipped than appellate courts for gathering and analyzing factual evidence.  So in 2005, the D.C. Circuit punted the case back to the District Court to determine whether the laches defense applied to Mr. Romero.  (Umm, guess I blew it on the sports metaphor thing.)

In July of 2006, the District Court, predictably enough, said that it did.  That eight-year delay, according to them, was enough to inconvenience the football defendants so badly that the case should be dismissed.  That pretty much killed off the complaint.  The plaintiffs tried to get the U.S. Supreme Court interested, but the Supremes don’t have to take cases they don’t want to take, and in 2009, they said they didn’t want to take this one.  The end.

The case that just got decided by TTAB yesterday was filed in 2012.  TTAB’s decision was great and everything — well, I think it was — but it was hardly unexpected.  This is the exact same issue they considered back in 1992, and they said the exact same thing yesterday that they said back then.  I would imagine, though I haven’t checked, that the plaintiffs this time around included someone who was not more than a few days over 18 years old, which should take care of the laches problem; obviously they’re not going to make that mistake again.  But it seems inevitable that the team’s lawyers will be running a full-court press in the District Court (whoops!  damn) to get this overturned on some other grounds.  God knows what they’ll come up with, and God knows what the court will say about it.  My fundamental point here is that while this is a great first step, so far they’ve only managed to get to someplace they’ve already been.

The Free Exercise cases

Well, this is interesting.  I was inspired to write this posting by the Arizona “no cakes for gays” law, but I didn’t get around to writing it until that had been consigned to the scrap heap of really bad legal ideas.  So I wrote it anyway, with an opening apology for it not being quite as timely as I’d hoped.  And now, it turns out it’s very timely, because this is also the relevant history of the legal principles behind the “Hobby Lobby” contraception cases, which are being argued in the Supreme Court today.  So perhaps this will be interesting to anyone who’s following that.

For starters, the legal principle we’re discussing here is the Free Exercise Clause of the First Amendment.  Among other things, the First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  That’s two different clauses.  There’s the so-called Establishment Clause, the bit before the comma, which is what prevents Congress from establishing a state religion, and arguably prevents government entities from putting up crosses and copies of the Ten Commandments and so forth.  And then there’s the part which would read “Congress shall make no law prohibiting the free exercise of religion” if they weren’t cramming two related but different concepts into the same sentence.  That’s the Free Exercise Clause.  That’s what all these cases are ultimately about.

(Brief digression: but it just says that Congress can’t make laws like that (I hear you cry).  So does that mean that state governments can make laws like that, since they’re not Congress?  No, it doesn’t.  This has to do with a principle called “incorporation,” which basically says that the Fourteenth Amendment makes most of the limitations on government power in the Bill of Rights applicable to state governments in addition to Congress.  More on that some other time, maybe.  For now, just trust me: the First Amendment limits the power of state governments exactly the same way it limits the power of the federal government.)

So, clearly, the government can’t make a law that says “Nobody can go to a mosque and participate in a Muslim service.”  That would obviously be prohibiting the free exercise of religion.  That one’s easy.  But suppose the city passes an ordinance saying that everybody has to rake the leaves on their lawn every Saturday.  No problem there, right?  Well, maybe there is.  What if I’m an orthodox Jew, and my religion forbids me to work on the Sabbath?  The ordinance wasn’t designed to prevent me from exercising my religion; it was designed to make everybody’s yard look nice.  But it has the effect of interfering with my religious practice.  That’s the sort of problem these cases address.

The Supremes have gone back and forth on this issue for almost as long as there have been Supremes.  The issue came up in 1878 over the question of whether a Mormon could be punished for bigamy, and they said yes to that in a case called Reynolds v. United States, but after that, there was a long, long period in which they invariably sided with the party who claimed that his religious freedom was being trampled.  For example, in Wisconsin v. Yoder in 1972, the Supremes held that Wisconsin’s laws requiring compulsory school attendance couldn’t be applied to Amish kids, and in Frank v. Alaska in 1979, they held that an Athabascan Indian from the Alaskan boonies couldn’t be punished for shooting a moose out of season because his religion required him to serve moose meat at a funeral ceremony.

But then the tide turned the other way.  The modern history of the Supreme Court’s rulings on this sort of thing starts in 1986 with a case called Goldman v. Weinberger.  Weinberger was Caspar Weinberger, who was Secretary of Defense at the time.  Goldman was a psychiatrist in the Air Force, and he had run afoul of an Air Force dress code which prohibited active-duty personnel from wearing hats indoors.  You can probably see it coming: Goldman, an observant Jew, got disciplined for wearing a yarmulke.  Is this a Free Exercise problem?  No, said the Supremes: “the First Amendment does not require the military to accommodate such practices in the face of its view that they would detract from the uniformity sought by the dress regulations.”  5-4 decision, with a dissent by O’Connor of the sort typically described as “blistering,” on the theme of “Srsly?  You’re saying that the Air Force’s need for uniformity trumps the First Freakin’ Amendment?”

But that was just some Air Force regulation, and people generally understand that the military has a lot of silly rules that don’t apply to the general public and that’s ok.  So Goldman didn’t stir up a lot of controversy.  The one that did came along four years later, in 1990: Employment Division of Oregon v. Smith.  Albert Smith worked for, of all things, a drug rehab center, and they fired him because they found out that he was using peyote.  He applied to the state of Oregon for unemployment, and they turned him down because he’d been fired for work-related misconduct.  But the thing is – again, you probably saw this coming – Smith was Native American, and he used peyote as part of his religious practice.  So the reason he didn’t get his unemployment payments was that he’d done something that his religion required him to do.  Any problem with that?

Nope, said Scalia, writing for one of those 5-4 majorities we so often see in controversial cases.  The line he drew was based on the intention behind the law: if the burden on religious practice is not the object of the law, but merely an incidental side effect of it, then no problem.  Scalia effectively overturned some earlier Supreme Court cases which said that when a law interferes with religious practice even accidentally, there has to be a “compelling government interest” in the law, which is a fancy way of saying that the government had better have a damn good reason for making a law like that.  Smith says no to that: if the government wants to make a law which just happens to make it illegal for some people to practice their religion, that’s fine and dandy as long as the government wasn’t trying to stop anyone from practicing their religion.  No compelling interest needed.

Well, that one raised a lot of hackles, including Congressional hackles.  In 1993, Congress passed a law grandiosely entitled the Religious Freedom Restoration Act, which claimed to restore the “compelling government interest” standard.  It said that governments, both state and federal, can’t make laws that just happen to unintentionally outlaw religious activities, unless there’s one of those “compelling government interest” things, and the law is the way of achieving that interest that’s as minimally burdensome to religious practice as possible.  That wouldn’t make it impossible to pass a law like the one that prevented Albert Smith from getting his unemployment checks, but it would make it enormously difficult.

At about the same time, also in 1993, the Supremes decided the case with my very favorite name of all Supreme Court cases ever: Church of the Lukumi Babalu Aye v. City of Hialeah.  This has nothing to do with “I Love Lucy”; Lukumi Babalu Aye was a Santeria church, and Hialeah is a city in Florida, just outside Miami.  The law that was being challenged in the case was a Hialeah city ordinance that prohibited the unnecessary or cruel killing of any animal in the city limits.  And – see this one coming? – a big part of Santeria religious practice is the sacrifice of chickens.  Oh-oh.

Well, that one was too much even for the Supremes, who concluded that this law actually was intended to prohibit religious practices.  Not to put too fine a point on it, Kennedy, the author of the opinion, felt that the city council had adopted this regulation specifically because the good people of Hialeah weren’t too excited about having a Santeria church in their town.  Kennedy noted the interesting coincidence that this ordinance was adopted about two months before the church got all its zoning approvals, and that Hialeah was perfectly fine with fishing and killing rodents in homes and other things that involved killing animals but didn’t involve unfamiliar African religions.  So Hialeah lost; the ordinance was struck down as unconstitutional.

It’s impossible to miss the point that the Supremes arrived at this decision at exactly the same time that Congress was going ballistic over Smith, which leads some of us to wonder if the Supremes were trying to be conciliatory, but the facts, at least the way Kennedy describes them, do seem pretty egregious.  On the other hand, the Supremes decide which cases they want to take, so maybe they took this one specifically because it would give them an opportunity to show that they meant what they had said in Smith about how it’s not ok for laws, even ones that don’t specifically mention religion, to intentionally target religious practice.  Who knows.  Anyway, that’s Lukumi Babalu Aye.  Isn’t that a great name?

So now it’s 1993 and RFRA, as the Religious Freedom Restoration Act is known to its friends, is now the law of the land.  (Pronounced “RIFF-ruh.”)  That, you’ll remember, is the “government needs to have a damn good reason for laws that restrict religious practice” law.  But RFRA was not long for this world, at least as far as state laws are concerned.

Fast forward to 1997.  A Catholic church in the city of Boerne, Texas (I have no idea how “Boerne” is pronounced) wants to expand its building.  But the existing building is a designated historic building in a designated historic district, and there’s a city ordinance saying that buildings like that can’t be enlarged or remodeled or whatever, so the city denies the building permit.  The archdiocese sues the city, claiming, among other things, that this is a RFRA violation, because the government doesn’t have a sufficiently compelling reason to deny the permit, and the denial restricts the church from practicing its religion.  And the case of City of Boerne v. Flores goes to the Supreme Court, Flores being the name of the local archbishop.

Pretty weak argument, say I.  The lack of a building permit wasn’t stopping the church from holding mass or communion or confession or any actual religious practice; it was stopping them from expanding their building, which would have allowed them to have more parishioners, and thereby bring in more money.  That’s not, in any but the most cynical sense, the “exercise of religion.”  But that’s not where the Supremes went with this one.  Remember how I mentioned, way up toward the top of this article, that there’s this “incorporation” principle that says that most of the Bill of Rights applies to state governments too, because of the Fourteenth Amendment?  Well, it turns out that principle doesn’t apply to federal laws, just to the federal Constitution.  And that’s the main holding of Flores: Congress doesn’t actually have the authority to decide what laws state governments can only make if they have a damn good reason to.  That’s a question of interpreting the Constitution, and that’s the Supreme Court’s job (says the Supreme Court).  Therefore, to the extent that RFRA purports to do that, it’s unconstitutional.  Basically, Flores amounts to a message from the Supreme Court to Congress saying “Hey, what has eighteen thumbs and is the only institution within the federal government that has the right to say what the Free Exercise does and does not prohibit?  These guys.”

However, RFRA continues to apply to the federal government, because Congress is at liberty to make laws telling itself what laws it can and can’t make.  That point was established by Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal in 2006.  This was somewhat similar to Smith: a Brazilian church in New Mexico imported a big stash of ayahuasca tea from Brazil in order to use it in some sort of ceremonial way, and it turns out that ayahuasca tea contains an illegal psychedelic called DMT, which is probably why it’s used in religious ceremonies.  Customs – a federal agency – seized the tea, and the church sued in federal court to get it back, claiming that the law against DMT prevented them from practicing their religion, and that therefore, under RFRA, the government needed one of those “compelling government interest” things in order to justify enforcing the law in their case.  The Supremes agreed, and further agreed that the government – the federal government – didn’t have one.  So the Centro Espirita got its psychedelic tea back.

What that means is that RFRA isn’t entirely dead: it still prevents the federal government from making laws that have the side effect of interfering with religious practice without a “compelling” reason for doing so.  But Flores killed RFRA with respect to state laws.  So for most states – those that haven’t passed their own version of RFRA – the rule is still what Smith said it was back in 1990: if a law is intended to be general-purpose and is not deliberately aimed at religious practice, but just happens to prohibit something that some religion requires its adherents to do, that’s ok and the law doesn’t violate the Free Exercise Clause.

So that’s the context in which those “no cakes for gays” laws come up.  The concern, apparently, is that general-purpose laws like state civil rights laws, which prohibit businesses from discriminating on the basis of (among other things and in at least some states) sexual orientation, will have the incidental effect of forcing people whose religions forbid them to participate in same-sex wedding ceremonies, in the same sense that Dr. Goldman’s religion forbade him from going around without his yarmulke, to participate in them anyway.  There are a lot of problems with that argument, notably including the point that Lukumi Babalu Aye really does put some pretty stringent limits on the government’s ability to pass laws that accidentally-on-purpose criminalize religious practice.  Nevertheless, a lot of religious groups worry that the Smith rule, which is still in effect in most states, allows the jackbooted government thugs to prevent people from practicing their religion.  And it’s not a particularly new concern; it’s been around since about three minutes after the Smith decision came down in 1990 and kicked off a decade-long squabble between Congress and the Supreme Court over this issue.  So that’s a little historical perspective on those proposed laws.

People v. Spriggs: what can you do with your smartphone while you’re driving?

Here’s a California appellate court decision that may interest anyone who has a smartphone: as of yesterday, it’s established that the law against talking on a hand-held phone while driving (as distinct from using some sort of hands-free rig) is just about talking on the phone; it doesn’t extend to other uses you might make of your phone.

The facts: Mr. Spriggs was stopped in traffic, and he checked Google Maps to see if he could find a way around the traffic jam, and a cop ticketed him for violating Vehicle Code section 23123(a), which says “A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.” He fought it in court on the basis that “using” in this context means “talking to someone on,” and he lost, appealed it to the appellate division*, lost again, appealed to the Court of Appeal, and won. The Court of Appeal found that while “using” is a bit on the ambiguous side, it’s really clear that this statute is just about using phones for vocal communication; it does not generally prohibit holding the phone in your hand. Link to the opinion is below.

For what it’s worth, I’ve been saying this for years. The court didn’t go here, but my argument has always been that the texting-while-driving law, Vehicle Code section 23123.5, explicitly says that it’s ok to dial telephone numbers while driving: “a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call.” That’s kind of verbose, but it’s perfectly clear that it means, at a minimum, “dialing is ok.” So it makes absolutely zero sense that the Legislature would then also make a law that says “oh, but holding the phone in your hand is not ok.” How am I supposed to dial it, then? Lay it on the passenger seat and reach over there? That’s vastly more dangerous than just doing it the obvious way.

Anyway, the result of this case, for better or for worse, is that California’s cell-phone-while-driving laws don’t prevent you from using the navigation feature of your smartphone while driving, even if that involves holding the phone in your hand. And I think it’s reasonable to interpret it as saying that these laws don’t prohibit you from using your smartphone while driving for any purpose other than the two explicitly prohibited ones: carrying on a non-hands-free conversation (VC 23123) or “using an electronic wireless communications device to manually communicate with any person using a text-based communication” such as texting or emailing (VC 23123.5). So, for example, it looks to me like you can play Candy Crush while driving without violating either of those laws (although I hasten to add that that’s a really terrible idea and undoubtedly illegal under some other law).

I’ll add that the use of the term “manually communicate” in the anti-texting law suggests to me that it’s ok to send text messages while driving if you use voice recognition to enter the text, rather than entering it on a keyboard.  “Manually” must mean something; there’s a general rule that legislatures don’t put words into statutes unless they have a good reason to.  And it seems pretty reasonable to me to suppose that “manually” means what it actually means: using the hands, as distinct from some other body part.  But that’s still an open question.  Up until yesterday, anyone who was voice-texting would have been cited under VC 23123, because up until yesterday everyone assumed that VC 23123 meant that you couldn’t have the phone in your hands at all.  So now that we know it doesn’t mean that any more, the question of whether voice-texting counts as “manually communicating” is up for grabs.

(* Footnote from above: in California, “appellate division” means a lower-level appellate court that hears initial appeals from misdemeanor and infraction cases. It’s part of the trial court system rather than the Court of Appeal. The phrase might be confusing to people from New York; there, “appellate division” means the intermediate appellate court, what we mean by “Court of Appeal.” New York is weird.)

Look at me, I’m blogging!

Ok, I’m going to give this a shot.  From time to time, I’ve posted on Facebook about developments in the law that I think might be interesting to non-lawyers if only they were explained in plain English instead of whatever that is that courts use, and various people have said things like “hey, you ought to be blogging.”  So ok, now I am.  We’ll see how this goes.  I would like to express my extreme admiration for my friend Greta Christina, who has worked her way up from blogger to successful, in-demand, published writer.  I have no expectations that anything like that will happen to me, and honestly I don’t even know if I aspire to it, but the fact that it happened to someone I personally actually know is just so amazing that it’s inspiring me to take at least the first baby steps.

I’ll start out with one on a very interesting California case called People v. Spriggs, which just came out yesterday.