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Tuesday, November 10, 2015

Legal arguments and public perceptions

Beth Thornburg of SMU coined the term "pleading as press release"--plaintiffs drafting pleadings with an intentional eye towards how the most dramatic allegations will be reported in the press and how the case will be framed and understood by the public. And they do this even where occasionally over-the-top allegations have nothing to do with the needs or requirements of pleading and even as the allegations may have the unintended effect of turning the judge off.

The flip side is playing out in the Washington Professional Football Team trademark litigation, now before the Fourth Circuit. The team's opening brief devoted a great deal of space identifying dozens of other trademarks--many containing offensive words and epithets--that have been registered without incident. (See, especially, p.4 and p.24 & n.4).  These examples support the sensible First Amendment arguments that 1) the government does not endorse all such marks so as to make them government speech and 2) the Washington Professional Football Team's trademark should not and cannot be singled out from the many other, offensive marks that have been registered.

Of course, that is not how the media has covered or discussed the argument. Instead, the team has been ridiculed for, essentially, arguing that it is no worse than SLUTSEEKERS dating service, TAKE YO PANTIES OFF clothing, or CAPITALISM SUCKS DONKEY BALLS. There is an obvious incoherence between the team defending the nickname as "honoring" Native Americans while also insisting that it receive the legal treatment of SHANK THE [email protected] board game. Whatever the legal merit of the argument, the press and the public cannot help but mock it and turn it into a criticism of the team--and no one mocks well as HBO's John Oliver, after the jump.

All of which is to say that legal argument in a high-profile case can be a two-edged sword, especially as it relates to sports and may draw in a new media and public audience. Sometimes the legal argument you need to make is one that will be viewed in a very different light by the public. Of course, the reality is that opposition to the nickname is so deep and so strong in some public and media segments that any legal position other than changing the name and surrendering the trademark, will be criticized and mocked.


Posted by Howard Wasserman on November 10, 2015 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink


Thanks for the shout-out, Howard!

Posted by: Beth Thornburg | Nov 10, 2015 3:42:36 PM

I don't buy the nexus with the First Amendment here, for two reasons:

(1) Failure of trademark registration does not prohibit speech; it doesn't even restrict speech. Indeed — ironically — it's granting a trademark registration that restricts speech: It allows the holder to restrict the speech _of others in a commercial context_. So, if there's a First Amendment argument in here anywhere, it has to be based upon the precept that trademark registration cannot include any discretion as to the government's approval of a monopoly on certain speech in a certain context... and that's a rather untenable position at both an abstract level (e.g., the wrongly-decided-but-nonetheless-the-law Snepp and the rightly-decided Telemarketing Associates) and in particular regarding branding exclusivity for an entertainment mascot.

Then, too, a little deeper inquiry into the history of trademark — which originated not as a right of the proprietor, but as a right of the public against counterfeiting of luxury goods — might be just a little bit too close to the owner's ego in this instance.

(2) The exemplars provided on behalf of the team at 24 n.4, umm, do not persuade. As a whole (and even individually, with only a few arguable exceptions that do not go to immutable ancestral characteristics), they do not engage with the immutable ancestry of the "potentially disparaged" group — that is, being a "slut" or "redneck" is not an inevitable consequence of one's ancestry over which one has no control whatsoever, because there are present behaviors involved. It's also bad argumentation to put forth noncomparable examples to "prove" one's point — especially when doing so buries the one comparable and potentially persuasive example in the middle of the list, which nonetheless requires substantial explanation — but that's for another time. This is just bad writing and bad rhetoric, thoroughly deserving of the mockery.

Posted by: C.E. Petit | Nov 10, 2015 11:38:43 AM

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