The Slants’ Saga Ends: USPTO Registers Service Mark

On November 14, 2017, six years to the day after the application was first filed with the USPTO which precipitated the landmark U.S. Supreme Court ruling in Matal v. Tam[1] striking down the disparagement clause of Section 2(a) of the Lanham Act, the USPTO has registered THE SLANTS service mark in International Class 41 for entertainment services.  So ends the tale of one Asian-American band trying to register a federally-protected mark for its band’s work, and the dismantling of one of the more controversial provisions of the Lanham Act when it was first enacted in 1946.  Our previous blog post discussed the Tam ruling.

[1] 582 U.S.___ (2017).

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USPTO Issues Exam Guidelines Consistent with Tam Decision

On June 26, 2017, the United States Patent and Trademark Office issued an updated Examination Guideline 01-17, consistent with the recent Matal v. Tam, 582 U.S.___ (2017), ruling by the United States Supreme Court, and for which our analysis was the subject of a previous post.  In that decision, the Supreme Court held that the disparagement clause of §2(a) of the Lanham Act violates the First Amendment of the U.S. Constitution by prohibiting registration of trademarks that may disparage persons, institutions, beliefs, or national symbols.

Going forward, the Trademark Examiners will not refuse trademark registration based on this provision of §2(a).  Any currently suspended application will proceed to examination under other aspects of the TMEP.  An application which was abandoned due to a §2(a) refusal, but is within the timeframe for filing a petition to revive, may be revived through such mechanism.  See TMEP 1714.01.  However, the subject matter of an abandoned application with is beyond the timeframe for filing a petition to revive can only be re-examined through the filing of a new application.

A caveat to the Guideline is that constitutionality of the companion clause to disparagement, the scandalousness clause, is still awaiting decision before the Court of Appeals for the Federal Circuit with the In re Brunetti case.  Any suspended application will remain suspended until Brunetti is decided.  It is expected that the scandalousness clause, like the disparagement clause, will be struck down.

SCOTUS Watch: Lanham Act’s §2(a) Disparagement Clause Struck Down

By Brent T. Yonehara

On June 19, 2017, the U.S. Supreme Court finally, and somewhat as expected, handed down its ruling in Matal v. Tam (formerly Lee v. Tam).[1]  By a unanimous vote, the Supreme Court struck down the Lanham Act’s §2(a) prohibition on registration of disparaging trademarks as a violation of the First Amendment’s Free Speech Clause.

The Lanham Act’s §2(a) reads, in full:

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it –

(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or a geographical indication which, used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 3501(9) of title 19) enters into force with respect to the United States.[2]

(emphasis added.)

The purpose of the disparagement clause of §2(a) is to bar registration, on either the Principal or Supplemental Register, of a mark that may show a particular person, institution, belief, or national symbol to disparagement, false connection, contempt, or disrepute.[3]

In writing for the Court, Justice Samuel Alito began the opinion by stating that [§2(a)] “offends a bedrock First Amendment principle: [s]peech may not be banned on the ground that it expresses ideas that offend.”[4]  He noted that in rejecting Tam’s trademark application for THE SLANTS, the Examining Attorney specifically cited dictionary definitions of “slant” and “slant eyes” as a derogatory or offensive term against Asian-Americans.[5]  However, the mark was not being used as a statement against Asian-Americans.  Rather, when the band, The Slants, filed its trademark application for THE SLANTS, the band’s lead singer (and plaintiff in the original action), Simon Tam, sought to “reclaim” its derogatory nature and use the term as a source of empowerment for Asian-Americans.  Indeed, several of the band’s songs sought to address the offensive slurs and statement made against Asian-Americans.[6]

Justice Alito swept away the USPTO’s arguments that trademarks were not subject to First Amendment protection or subject to rational basis review.  Specifically, the USPTO raised the arguments that trademarks are government speech and not private speech, that trademarks are a form of government subsidy, and that trademarks were a government program.

First, Alito disputed the contention that trademarks are government speech because an Examining Atttorney does not have latitude to reject a trademark application merely based on the viewpoint expressed by the trademark.  Further, the Examining Attorney does not inquire in any office action about conformity to Government policy or another registered mark’s viewpoint.  And, finally, the USPTO cannot merely remove a registered mark from the Principal Register, unless through another’s petition for cancellation, expiration of the mark (i.e., for failure to renew or file the appropriate post-registration documents), or through FTC proceedings.[7]  Alito concluded forcefully that “trademarks are private, not government, speech.”[8]

Second, Alito rejected the notion that trademarks are a government subsidy.  Citing a litany of cases where the government paid a cash grant or subsidy to private citizens, Alito noted that the USPTO does not pay private parties to register a trademark.  Rather, it is the exact opposite.[9]

Third, Alito rejected the USPTO’s contention that §2(a)’s disparagement clause was a protected doctrine for government programs.  In what seemed a far-fetched argument by the USPTO, Alito pointedly noted that trademark registration has nothing to do with these line of government program-type of cases, which focused on the Government conferring some benefit to a private party to further some activity the Government was promoting.  These cases, Alito demurred, had no relevance to the current case of trademarks.[10]

All of this amounts in the Court’s opinion to viewpoint discrimination on the part of the Government against a private citizen related to freedom of speech when it comes to registering a trademark.[11]  “Giving offense is a viewpoint,” noted Alito.[12]  §2(a)’s disparagement clause discriminates against speech on the basis of a viewpoint.  Although even-handed in its viewpoint discrimination, the disparagement clause prohibits “public expression of ideas . . . merely because the ideas themselves [are] offensive to some of the hearers.”[13]

The Court further noted the vagueness of determining disparagement while undergoing prosecution before the USPTO, and that there currently exists an unequal level of enforcement of the statute against allegedly disparaging marks, citing the high number of registered marks on the Principal Register that §2(a)’s disparagement clause would likely disparage a racial or ethnic group.[14]  Alito further asserted that §2(a)’s disparagement clause was too broadly drafted and not narrowly tailored to serve the interest of preventing trademarks that supported invidious discrimination against one particular person, ethnicity or racial group.[15]

The case is far-reaching, and perhaps the most immediate beneficiary of the Tam case is the Washington Redskins, who were embroiled in their own trademark cancellation proceeding before the USPTO when a group of Native Americans challenged six trademark registrations for WASHINGTON REDSKINS under §2(a)’s disparagement clause, and which the Federal appellate action is stayed pending the outcome of the Tam case.[16]  (We discussed this case in an earlier post on this blog, here).  Other parts of §2(a), including the prohibition on registration of immoral or scandalous marks, could be ripe for judicial review, and could be struck down in similar fashion as the disparagement clause.  Indeed, in a letter from the USPTO to the Court of Appeals for the Federal Circuit, the Director requested that the In re Brunetti case be remanded back to the USPTO because, in light of the Tam decision before the Federal Circuit in 2015, the USPTO did not believe that “Section 2(a)’s prohibition on registration of scandalous and immoral marks can withstand challenge under the current law.”[17]

It will be a while until the USPTO revises the TMEP and releases an Examination Guideline consistent with the Tam ruling.  It is curious that §2(a) was drafted with the Lanham Act’s enactment in 1947,[18] and it took seventy years for one of its provisions to be struck down as unconstitutional.  Notwithstanding, without a doubt, more trademark applications will be filed containing objectionable or arguably offensive material.

[1] 582 U.S.___ (2017).

[2] 15 U.S.C. 1052(a).

[3] See TMEP 1203.03, Matter That May Disparage, Falsely Suggest a Connection, or Bring Contempt or Disrepute (Apr. 2017).

[4] 582 U.S. at ___, supra (slip op. at 1-2).

[5] Id. (slip op. at 7).

[6] Id.

[7] Id. (slip op. at 14).

[8] Id. (slip op. at 18).

[9] Id. (slip op. at 18-19).

[10] Id. (slip op. at 21-22).

[11] Id. (slip op. at 7).

[12] Id. (slip op. at 22).

[13] Id. (slip op. at 23) (citing Texas v. Johnson, 491 U.S. 397, 414 (1989); Hustler Magazine Inc. v. Falwell, 485 U.S. 46, 55-56 (1988); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 509-514 (1969)).

[14] Id. (slip op. at 11-12).  Although, it is interesting Justice Alito does not produce a single registered trademark or service mark that he would consider to be a disparaging mark; he does, however, cite the Washington Redskin’s parent company’s amicus curiae brief as authority for this statement.  See id. (slip op. at 12, fn. 6).

[15] Id. (slip op. at 25).

[16] See Pro-Football, Inc. v. Blackhorse, 112 F.Supp.3d 439 (E.D.Va. 2015).

[17] See Letter of January 21, 2016, to Clerk of Federal Circuit Court of Appeals, from Director, USPTO.

[18] See, e.g., Theodore H. Davis, Jr., Registration of Scandalous, Immoral, and Disparaging Matter Under Section 2(a) of the Lanham Act: Can One Man’s Vulgarity Be Another’s Registered Trademark?, 54 Ohio State L.J. 331-401 (1993).

WASHINGTON REDSKINS SKINNED: EFFECT OF THE TTAB’S CANCELLATION

By Brent T. Yonehara

INTRODUCTION

There has been recent controversy regarding the use of the Washington Redskins trade name.[1] Today, the Trademark Trial and Appeal Board (TTAB) summarily cancelled six trademark registrations held by the Pro Football, Inc..[2] Many people, including President Obama, have objected to the continued use of the REDSKINS mark.[3] While there is an anticipated appeal of the TTAB decision, this ruling represents a major victory for Native Americans who see the term as a derogatory and racially offensive slur consistent with the Lanham Act’s Section 2(a) prohibition of disparaging marks.

DISCUSSION

The six service mark registrations at issue include:[4]

Mark Registration No. Class
THE REDSKINS (stylized) 0836122 entertainment services – namely, football exhibitions rendered in stadia and through the media of radio and television broadcasts, in Class 41
WASHINGTON REDSKINS 0978824 entertainment services – namely, presentations of professional football contests, in Class 41
WASHINGTON REDSKINS and design 0986668 entertainment services – namely, presentations of professional football contests, in Class 41
THE REDSKINS and design 0987127 entertainment services – namely, presentations of professional football contests, in Class 41
REDSKINS 1085092 entertainment services – namely, presentations of professional football contests, in Class 41
REDSKINETTES 1606810 entertainment services, namely, cheerleaders who perform dance routines at professional football games and exhibitions and other personal appearances, in Class 41

The petitioners in the cancellation proceeding were five Native Americans.[5] This proceeding was altogether separate from another lawsuit brought by another group of Native Americans against the Pro Football, Inc., the official name of The Washington Redskins organization.[6] In that very convoluted litigation, Harjo v. Pro Football, Inc., the petitioners raised a disparagement claim similar to the Blackhorse petitioners.[7] However, the Harjo case completed its circuitous judicial travails only dealing with procedural issues (and specifically the equitable defense of laches), and never addressed the underlying substantive trademark issue of disparagement.[8]

Trademark Claim of Disparagement

Historically, the term “redskin” meant a scalped head of a killed Native American, which, under the colonial English Phips Proclamation policy, was designed to eliminate existing Native American tribes as English colonists expanded their territorial reach in the Americas.[9]

Section 2(a) of the Lanham Act states that no trademark registration is allowed if it:

(a) consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute . . . [10]

The TTAB reviewed both historical context and expert testimony in determining whether REDSKINS was, in fact, “immoral, deceptive, or scandalous.” Consequently, it found that the term was a “racially designation,” referring to the skin color of Native Americans, and throughout modern history, the lexicon became known to be “offensive, disparaging, contemptuous or not preferred.”[11]   The TTAB, utilizing the “substantial composite” test,[12] determined that a substantial composite of Native Americans found the term “redskins” to be derogatory at the time of the registrations.[13] This evidence was enough for the TTAB to cancel the six Redskins service mark registrations.[14]

Effects of Cancellation

Currently, the TTAB ruling only strips federal trademark registration benefits, namely, allowing a trademark owner to sue alleged infringers under a number of federal trademark causes of action. The practical effect of the ruling is somewhat muted since it would mean anyone could, for example, sell merchandise with the REDSKINS logo and not face a trademark action under federal laws.[15]

However, this does not mean Pro Football does not have a remedy under common law or state trademark statutes.[16] Since Pro Football maintains a principal place of business in Virginia[17] and was incorporated in Maryland,[18] it could seek remedy under Virginia or Maryland trademark or common laws, since Pro Football owns state trademark registrations in Virginia and Maryland.[19] The legal judgments, if any, would be limited to the jurisdictions each respective state. Theoretically, the Blackhorse petitioners could also seek to cancel the state registrations.

Furthermore, Pro Football can also appeal the TTAB decision to the federal courts, which they will do, as expected.[20] This will open the door to an entirely new, and probably protracted, litigation proceeding with an unknown outcome.

On a related note, the TTAB ruling does not affect the domain name registration for “redskins.com,” which is owned by Pro Football.[21] A domain name cancellation would entail commencing a completely separate, administrative proceeding under the Uniform Dispute Resolution Policy (UDRP) through an ICANN registered administrative hearing body.[22] However, the Blackhorse petitioners may have a difficult case showing that redskins.com is confusingly similar, being used in bad faith, and which Pro Football does not have legitimate interests in REDSKINS.[23] Pro Football, though, would have some difficulty with its affirmative defense under the IP Defensive Registration conditions because of the cancelled federal registration.[24] In any case, it would be a lengthy, and quite expensive, endeavor.

CONCLUSION

The TTAB ruling is a victory for Native American history and culture, who have faced centuries of English, and later, American repression.[25] Recently, there has been a movement to address the offensive usages of the Native American persona in sports[26] and academia[27]. The ruling itself may be limited in certain legal scope and jurisdiction. However, symbolically, it represents a change in the public’s perception of the REDSKINS trademark, and more importantly, redress for the Native American people.

By Brent Yonehara. Originally published at http://yonaxis.blogspot.com/2014/06/washington-redskins-skinned-effect-of.html (June 18, 2014).

[1] See, e.g., Maya Rhodan, 50 Senators Demand Washington Redskins Change Their Name, Time, at http://time.com/108893/washington-redskins-name-senators/ (May 22, 2014).

[2] See Blackhorse et al. v. Pro Football, Inc., ___USPQ.2d___ (TTAB 2014), available at http://ttabvue.uspto.gov/ttabvue/v?pno=92046185&pty=CAN&eno=199 (last visited June 18, 2014).

[3] See Theresa Vargas & Annys Shin, President Obama says, ‘I’d think about changing’ name of Washington Redskins, The Washington Post, at http://www.washingtonpost.com/local/president-obama-says-id-think-about-changing-name-of-washington-redskins/2013/10/05/e170b914-2b70-11e3-8ade-a1f23cda135e_story.html (Oct. 5, 2013).

[4] See Blackhorse, supra note 2 at 2-4.

[5] Id. at 7. A sixth petitioner withdrew during the pendency of the cancellation proceeding. Id. at n.8.

[6] See Harjo v. Pro Football, Inc., 30 USPQ.2d 1828 (TTAB 1994), rev’d 284 F.Supp.2d 96 (D.D.C. 2003), rev’d 415 F.3d 44 (D.C. Cir. 2005), aff’d 565 F.3d 880 (D.C. Cir. 2009).

[7] See Harjo, supra note 5.

[8] See Blackhorse, supra note 2 at 6.

[9] See Baxter Holmes, A ‘Redskin’ is the Scalped Head of a Native American, Sold, Like a Pelt, for Cash, Esquire, at http://www.esquire.com/blogs/news/true-redskins-meaning (June 17, 2014); but see Dan Snyder, Letter from Washington Redskins Owner Dan Snyder to Fans, at http://www.washingtonpost.com/local/letter-from-washington-redskins-owner-dan-snyder-to-fans/2013/10/09/e7670ba0-30fe-11e3-8627-c5d7de0a046b_story.html (October 9, 2013) (“The name was never a label. It was, and continues to be, a badge of honor.”).

[10] See Lanham Act §2(a), 15 U.S.C. §1052(a), at http://www.bitlaw.com/source/15usc/1052.html.

[11] See Blackhorse, supra note 2 at 59-61.

[12] Determining whether a mark meets §2(a) requires that the views of the referenced group are “reasonably determined by the views of a substantial composite thereof (emphasis added).” See Pro-Football, Inc. v. Harjo, 284 F.Supp.2d 96, 144-145 (D.D.C. 2003). A substantial composite does not have to be a majority of the allegedly offended group. See In re Heeb Media LLC, 89 USPQ.2d 1071, 1074 (TTAB 2008). Additionally, the relevant viewpoint is not a majority but a substantial component of the general public in the context of contemporary attitudes. See In re Mavety Media Group Ltd., 33 F.3d 1367, 1382 (Fed. Cir. 1994).

[13] See Blackhorse, supra note 2 at 68.

[14] Id. at 72.

[15] See Erik Brady, How Will Pending Trademark Ruling Impact Redskins Name?, USA Today Sports, at http://www.usatoday.com/story/sports/nfl/redskins/2014/05/28/washington-redskins-mascot-controversy-trademark-daniel-snyder/9680563/ (May 28, 2014, 9:23 PM EDT).

[16] Id. See also Media Fact Sheet, USPTO TTAB Decision (Cancellation No. 92046185), at http://www.uspto.gov/news/USPTO_Official_Fact_Sheet_on_TTAB_decision_in_Blackhorse_v_Pro_Football_Inc.pdf (June 18, 2014).

[17] See State Corporation Commission Business Search database, Commonwealth of Virginia, at https://sccefile.scc.virginia.gov/Business/F024104 (last visited June 18, 2014) (Reg. No. F0241044, formation date of July 21, 1971).

[18] See Department of Assessments & Taxation, State of Maryland database, at http://sdatcert3.resiusa.org/UCC-Charter/DisplayEntity_b.aspx?EntityID=D00176966&EntityName=PRO-FOOTBALL%2c+INC.+++++++++++++++++++++++++++++++++++++++++&TabNum=1 (last visited June 18, 2014) (Dept. No. 300176966, formation date of December 4, 1936).

[19] See Division of Securities & Retail Franchising, Trademarks and Service Marks Registered in Virginia database, at https://www.scc.virginia.gov/srf/SERFWEB/RegistrationSearches/WebForms/Search.aspx?SearchType=TMSM (last visited June 18, 2014) (WASHINGTON REDSKINS, registered February 14, 1995, with first use date of July 31, 1972); Trademarks & Service Marks Database, Maryland Secretary of State, at http://www.sos.state.md.us/registrations/trademarks/TMSearch.aspx (last visited June 18, 2014) (11 separate registrations).

[20] See Frank Schwab, Washington Redskins Will Appeal Trademark Office Ruling Over ‘Disparaging’ Nickname, Yahoo Sports, at http://sports.yahoo.com/blogs/nfl-shutdown-corner/u-s–patent-and-trademark-office-cancels-washington-redskins–trademarks-144712305.html (June 18, 2014).

[21] See Whois database, at http://who.is/whois/redskins.com (last visited June 18, 2014) (redskins.com, registered through MarkMonitor, Inc., registered on July 29, 1996, and expiring on July 28, 2014).

[22] See generally ICANN, Uniform Domain Name Dispute Resolution Policy (UDRP), at https://www.icann.org/resources/pages/policy-2012-02-25-en (last visited June 18, 2014).

[23] See UDRP Rules §3(b)(ix)(1)-(3), at https://www.icann.org/resources/pages/rules-be-2012-02-25-en (last visited June 18, 2014).

[24] See UDRP Intellectual Property Defensive Registration Challenge Policy §4(b)(iii), at https://www.icann.org/resources/pages/ipdrcp-2012-02-25-en (last visited June 18, 2014) (“the trademark or service mark registration is of national effect” (emphasis added)).

[25] See generally Sarah Harding, Justifying Repatriation of Native American Cultural Property, 72 Ind.L.J. 723 (1997); Lenora Ledwon, Native American Life Stories and “Authorship”: Legal and Ethical Issues, 9 St. Thomas L. Rev. 69 (1996).

[26] See generally Ethan G. Zlotchew, “Scandalous” or “Disparaging”? It Should Make a Difference in Opposition and Cancellations Actions: Views on the Lanham Act’s Section 2(a) Prohibitions Using the Example of Native American Symbolism in Athletics, 22 Colum.-VLA J.L. & Arts 217 (1998); George Likourezos, A Case of First Impression: American Indians Seek Cancellation of Trademarked Term “Redskins”, 78 J. Pat. Trademark Off. Soc’y 275 (Apr. 1996).

[27] See generally Daniel J. Trainor, Native American Mascots, Schools, and the Title VI Hostile Environment, 1995 U. Ill. L.R. 971 (1995); Stanford Native American Cultural Center, The Removal of the Indian Mascot of Stanford, at http://nacc.stanford.edu/mascot.html (last visited June 18, 2014).

CITIZENS UNITED v. FEC: THE CORRUPTION OF THE AMERICAN POLITICAL PROCESS THROUGH INDEPENDENT CORPORATE EXPENDITURES

By Brent T. Yonehara

Introduction

There are myriad reasons on how corporate special interests have decimated the American political system. Jack Abramoff traded gifts for votes and tax breaks in a scandal that rocked Congress in 2005.[1] Big Tobacco contributed $46.7 million to defeat a recent California ballot measure to tax cigarettes to fund cancer research.[2] In order to fully explore this topic, an entire treatise could be prepared. However, for brevity, this essay is limited in scope to the narrower topic of independent corporate expenditures and its corruptive influence on the political process as illustrated by the recent U.S. Supreme Court ruling in Citizens United v. FEC.[3] The following is a discussion of three reasons why the political process has not been enhanced as a result of the Citizens United ruling. Part II argues independent corporate expenditures have corrupted the political process. Part III argues free speech rights have been undermined (and not strengthened) as a result of Citizens United. Part IV argues that electoral integrity has been damaged as a result of Citizens United. Parts II-IV begin with arguments in favor of independent corporate expenditures, followed by arguments supporting the main proposition that the American political process has been corrupted by independent corporate expenditures. Part V concludes that corporate special interests do not enhance, but rather corrupt the American political process.

  1. Independent Corporate Expenditures Corrupt the Political Process

Citizens United held that a corporation may independently contribute money to a political cause as a matter of its First Amendment guaranteed right of free speech.[4] The legal theory of First Amendment free speech protection is premised on the U.S. Constitution’s guarantee that “Congress will make no law . . . abridging the freedom of speech . . . .”[5] Political speech rights are fully protected under the Constitution.[6] As such, the Citizens United court determined that the only corporate political speech (i.e., independent expenditures) which could be constitutionally limited was speech that amounted to quid pro quo corruption.[7] Corporate political speech outside of a quid pro quo context is fully protected by the First Amendment.[8] Here, Citizens United was a corporation which produced a documentary, Hillary: The Movie, highly critical of the presidential candidacy of former Senator Hillary Rodham Clinton.[9] Through its voice-over narration and critical interviews, it left little doubt that the movie was an express advocacy against a possible Hillary Clinton’s presidency.[10] The Court held that any type of speech, outside of quid pro quo corruptive speech, which interferes with the corporate free speech rights is inconsistent with the constitutional protections guaranteed by the First Amendment.[11] As the Citizens United majority wrote, it would be “stranger than fiction . . . to make political speech . . . a crime.”[12] As such, expenditures as speech should be given the highest level of constitutional protection because its denial would undermine the very tenets of the First Amendment’s guarantee of free speech.[13] Furthermore, Citizens United upheld the requirement that the funds are properly disclosed in accordance with federal law.[14] According to the Court, disclosure requirements allow the necessary transparency so informed decisions can be made during the electoral process.[15]

However, government should work vigorously to prevent corruption in the body politic because it is a compelling government interest.[16] Either by design or by coincidence, Citizens United has allowed corporate special interests to freely inject millions of dollars into the campaigning process, thus corrupting the political process.[17] American legal history is replete with Supreme Court decisions enforcing Congressional attempts to limit corruption in elections or the electoral process.[18] It is a cold, hard truth that electoral campaigns are expensive.[19] Since politicians require money in order to run a campaign, it would be expected that they raise as much money as possible. This is where corporate special interests enter the picture. Prior to Citizens United, corporate special interests could only independently contribute those amounts of money consistent with federal or state restrictions.[20] After Citizens United, corporate special interests can now contribute unlimited amounts of money for a political cause under the guise of First Amendment protection.[21] Additionally, disclosure requirements are meaningless where a large sum of money can enter the political process, but the contributor can remain hidden behind the Byzantine web of loopholes governing super political action committees (“Super PACs”).[22] Transparency means little if disclosure of these independent contributors is immediate and publicly accessible.[23] In this regard, Citizens United created an atmosphere where corporate interests can throw a tremendous amount of money into the political process.[24] This also represents a very small number of wealthy special interests with the resources to fund a well-financed campaign.[25] This, in turn, has created an aura of corruption because there is an inferred reason for the influx of money – namely, to influence political decision-making.[26] As the Supreme Court noted: “corruption is a subversion of the political process . . . and the hallmark of corruption is the financial quid pro quo: dollars for political favors.”[27] As such, independent corporate expenditures have had a corruptive effect on the political process, only amplified by the Citizens United case.

Citizens United Undermines, Not Strengthens, Free Speech Rights

Citizens United solidified the proposition that a corporation’s political speech cannot be suppressed.[28] Citizens United reinforced the idea that corporations are “persons,” and as such, have the same rights under the U.S. Constitution.[29] By extension, a corporation, as “a person,” may exercise its free speech rights by using independent expenditures for advocating for or against various issues in which it feels compelled to do so.[30] The Citizens United court built its rationale around the decision in Buckley v. Valeo,[31] where the Court held limitations on expenditures to one’s own campaign violated the First Amendment.[32] Prohibiting independent corporate expenditures would be a ban on free speech itself.[33] Furthermore, the Citizens United Court postulated that the Constitution never explicitly denied free speech rights to an association of persons – i.e., a corporation.[34] The Court compared the Frank Capra classic Mr. Smith Goes to Washington to Hillary.[35] Both films were produced by corporations with a clear, critical political message.[36] The only difference between the films was that the former was a work of fiction and the latter was not.[37] The Court opined that if corporate political speech, in the form of independent campaign expenditures, was suppressed, Mr. Smith would have been banned from distribution.[38] Therefore, the Court decided independent corporate expenditures were fully guaranteed by the First Amendment.[39]

However, the First Amendment’s right to free speech has never been absolute under all circumstances; on the contrary, there are many limitations to free speech given the context and the players involved.[40] Moreover, speech, either spoken or symbolic, is stated by a living person. Corporations are not people.[41] Of course, corporations are necessary for living persons to transact business in their daily lives.[42] Nevertheless, the Constitution was not written by a group of corporations; on the contrary, it was written by a group of living, breathing natural persons – people with thoughts, feelings, and beliefs.[43] A corporation is a legal fiction borne out of the necessity to assist people in their economic interests or pursuits of happiness.[44] As such, “corporate speech is [] derivative speech . . . [or] speech by proxy.”[45] A corporation cannot burn a flag in protest of national politics.[46] A corporation cannot wear a jacket embroidered with a profanity and walk into a public square to protest an unjust war.[47] Only a natural person can do these things.[48] But because corporations are allowed to the same political speech as those of the common person, independent corporate expenditures have overwhelmed the political forum.[49] These huge amounts of expenditures may appear to be legitimate political speech, but in practice, it works to drown out all other political campaigning speech.[50] In this respect, the free speech of corporate special interests undermines the free speech rights of those individuals who do not have the ability to contribute vast amounts of money.[51] Those with the ability to spend the most money can speak the loudest when it comes to free speech – and this arguably would violate the Constitution’s Equal Protections Clause in that the laws are to be evenly applied to all “persons.”[52]

Corporate Special Interests Have Damaged Electoral Integrity

Justice Antonin Scalia, who voted with the Citizens United majority, made two observations when discussing the landmark case.[53] First, if people are dismayed by the political speech in political advertisements they should just simply “turn off the TV.”[54] Continuing his argument, most voters are savvy enough to shut out campaign ads which they do not agree with.[55] Scalia further postulated that protecting the electoral process cannot be combatted by placing limitations on political speech.[56] Attacks on speech are still a restriction on speech regardless of who the speaker is.[57] Should the Democratic Party or Republican Party be banned from advertising on behalf of each party’s candidates in each election simply because each is a corporation?[58] Scalia believes not, and further surmises that speech cannot be limited based on speakers because the First Amendment was not written directed toward speakers, but rather the speech.[59] Scalia’s second point was that if there was any criticism of the Citizens United case it should not be directed toward the Supreme Court but rather Congress, whose members are constitutionally vested with making laws to directly combat the issue of special interest money in elections.[60] The Supreme Court can only interpret the case in light of the Constitution and cannot legislate.[61] Therefore, Congress should enact a law to change the current electoral system – incidentally, the same system which Congress created.[62] In other words, the electoral process is created by Congressional authority and not by Supreme Court opinion.[63] As such, its integrity is dictated by the laws enacted by Congress.

However, while Justice Scalia has a compelling argument in favor of the Citizens United ruling, simply turning off a television does not comport with the reality of how today’s voter obtains information. One cannot simply turn off the television especially when political speech can be viewed from a variety of technological media, including a computer, smartphone, or tablet, as well as more traditional media like a radio or magazine.[64] The ecosystem in which political speech exists will be reduced to nothing more than an auction, where the bidder who speaks with the most amount money wins.[65] Additionally, regulating electoral integrity is not predicated on deoxygenating a vibrant and thriving First Amendment heritage.[66] An even-handed restriction on speech has been deemed necessary if to protect the integrity of the electoral process.[67] Justice John Paul Stevens, the lead dissenter in Citizens United, wrote in his concurring opinion in Austin v. Michigan Chamber of Commerce that regulatory electoral laws are designed as such to prevent the creation of so-called “political debts.”[68] Government has a compelling interest in ensuring that there is no undue influence upon politicians from outside interests.[69] In doing so, Government, in its role as regulator of the political process, can achieve equilibrium by narrowly tailoring a restriction on speech in order to uphold electoral integrity.[70] Independent corporate expenditures do not have to be completely banned; nay, this itself would be a violation of free speech.[71] Yet, expenditures can be limited in amount or by the speaker in a manner that would not obstruct the First Amendment and still protect electoral virtue at the same time.[72]

Conclusion

Let it be clearly stated: this essay does not advocate for burdensome regulation on the freedom of free speech.[73] Free speech, as both a commonly understood principle and a well-analyzed corpus of legal jurisprudence, is a constitutionally-protected right. As a matter of constitutional law, it is an area which the Supreme Court must aggressively safeguard against unnecessary regulation, as opposed to another area of law, say, for example, torts or contracts which can rely on market forces to dictate legal behavior.[74] However, corporate special interests should not be allowed free reign to expend unlimited amounts of expenditures in the name of political speech.[75] Citizens United created an electoral Berlin Wall with permissible free speech on one side and protection of the electoral process on the other. In practice, a new Cold War has emerged with the advent of Super PACs and unlimited money from special interests. In 2008, $37 million was spent on independent expenditures.[76] In 2012, two years after the Citizens United ruling was issued, more than $181 million has been spent so far, and there are still more than three months left in the presidential campaign season.[77] Free speech is one thing; however, a tsunami of speech from one player which drowns out speech from all others does little to promote a dynamic forum for the First Amendment except for those few wealthy corporate special interests.[78] In fact, it reduces electoral integrity as the influx of money into the political process will cause voters to lose faith in our electoral system.[79] Exemplifying this concept is the U.S. Senate’s failure to pass the DISCLOSE Act just earlier this month.[80] When the 1st Baron Acton proclaimed that “power tends to corrupt but absolute power corrupts absolutely,” he meant it in the context of an ecclesiastical debate.[81] However, one-hundred fifteen years later, his oft-mentioned quote still holds relevancy today. Substitute “power” with “money” and it encapsulates the debate surrounding campaign finance reform. However, given the nature of American politics today, it is certain that the American political process has been severely damaged by the proliferation of independent corporate expenditures, and sadly, there does not appear to be a near-term resolution to the matter.

* B.A., Political Science, University of California, Santa Barbara, 1993; J.D., California Western School of Law, 2000.   Originally published in yonaxis.blogspot.com, http://yonaxis.blogspot.com/2013/05/this-has-nothing-to-do-with.html (May 15, 2013).

[1] See Jack Abramoff: The Lobbyist’s Playbook, CBS News, at http://www.cbsnews.com/8301-18560_162-57319075/jack-abramoff-the-lobbyists-playbook/?tag=contentMain;contentBody (publ’d Nov. 6, 2011, orig. aired on 60 Minutes on Nov. 6, 2011).

[2] See Stephen Stock, et al., The Investigative Unit Follows Prop 29 Money Trail, NBC Bay Area News, at http://www.nbcbayarea.com/investigations/The-Investigative-Unit-Follows-Prop-29-Money-Trail–156450895.html (publ’d Jun. 4, 2012).

[3] Citizens United v. Fed. Elections Comm’n, 558 U.S. ___, 130 S. Ct. 876 (2010) [hereinafter Citizens United].

[4] Citizens United, 558 U.S. at 53-54.

[5] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances”).

[6] Citizens United, 558 U.S. at 76, citing First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978).

[7] Id., 558 U.S. at 93. Quid pro quo corruption is defined as corruption where campaign money is traded for political favors. Id. at 29.

[8] Id. at 43.

[9] Citizens United, 558 U.S. at 2.

[10] Id. at 57-58.

[11] Id. at 89-90.

[12] Id. at 56.

[13] Id.

[14] Id. at 55.

[15] Id. (Kennedy, J.) (“This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages”).

[16] See Davis v. Fed. Elections Comm’n, 554 U.S. 724, 741 (2008); see also Citizens United, 558 U.S. at 75 (Stevens, J., dissenting) (“Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”).

[17] Lawrence Lessig, Democracy After Citizens United, Boston Review, at http://bostonreview.net/BR35.5/lessig.php (publ’d Sept./Oct. 2010) (arguing special interest funding of public campaigns has corrupted the integrity of Congress as an institution).

[18] See Calif. Med. Assn. v. Fed. Elec. Comm’n, 453 U.S. 182 (1981) (affirming law that limits corporate campaign contributions to a political committee); Fed. Elec. Comm’n v. Nat’l Right to Work Comm., 459 U.S. 197 (1982) (holding that a corporate interests are outweighed by Congressional legislation designed to root out corruption in the electoral process); Fed. Elec. Comm’n v. Mass. Cit. for Life, Inc., 479 U.S. 138 (1986) (upholding state law prohibiting independent corporate expenditures in primary elections); Fed. Elec. Comm’n v. Beaumont, 539 U.S. 146 (2003) (upholding federal law prohibiting nonprofit advocacy corporations’ independent expenditures to campaigns); McConnell v. Fed. Elec. Comm’n, 540 U.S. 93 (2003), partially overruled by Citizens United, 558 U.S. at 50 (Kennedy, J.) (upholding McCain-Feingold Act restrictions on “soft money” – expenditures used to increase voter turnout or registration); Fed. Elec. Comm’n v. Wisc. Right to Life, Inc., 551 U.S. 449 (2007) (upholding McCain-Feingold Act to ban issue ads 30 days of a federal election as long as the ad advocated election or defeat of a candidate).

[19] See Arthur Delaney, 2010 Midterm Elections To Be Most Expensive Ever: Analysis, Huffington Post, at http://www.huffingtonpost.com/2010/02/23/2010-midterm-elections-to_n_473131.html (publ’d Apr. 25, 2010; updated May 25, 2011).

[20] See Austin v. Mich. Chamber of Commerce 494 U.S. 652, 660 (1990), overruled by Citizens United, 558 U.S. at 53.

[21] See Lessig, supra note 4.

[22] See Sam Stein, Super PAC Disclosure Requirements Hot Topic of Conversation Among GOP Candidates, Huffington Post, at http://www.huffingtonpost.com/2012/01/05/2012-election-new-hampshire-primary-super-pac_n_1186413.html (publ’d Jan. 5, 2012).

[23] Id.

[24] Id.

[25] See Alan Simpson, Special Interests Distort Elections, Politico, at http://www.politico.com/news/stories/0411/53597.html (publ’d Apr. 25, 2011 4:41 AM EDT). Alan Simpson is a former Republican senator from Wyoming who co-chairs the Americans for Campaign Reform, along with former Senators Bill Bradley of New Jersey, Bob Kerrey of Nebraska, both Democrats, and Warren Rudman of New Hampshire, a Republican. Id.

[26] Id. But cf. Citizens United at 45 (Kennedy, J.) (holding that independent expenditures do not amount to quid pro quo corruption).

[27] See Fed. Elections Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 497 (1985). See also Lessig, supra note 4 (querying whether the Court should have made a dividing line between quid pro quo corruption and all other types of corruptions).

[28] Citizens United, 558 U.S. at 50.

[29] Id. at 25, citing Bellotti, 435 U.S. at 778, n. 14.

[30] Id. at 55-6.

[31] 424 U.S. 1 (1976).

[32] Id. at 58.

[33] Citizens United, 558 U.S. at 22.

[34] Citizens United at 1 (Scalia, J., concurring).

[35] Id. at 56.

[36] Id.

[37] Id.

[38] Id.

[39] Id. at 57.

[40] See, e.g., Brandenburg v. U.S., 395 U.S. 444 (1969) (limiting speech where one openly speaks of violent action against the government); Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988) (limiting speech of school newspapers because school newspapers enjoy fewer First Amendment protections); N.Y. Times v. Sullivan, 376 U.S. 254 (1964) (limiting speech where a person defames another if the statement contained “actual malice”); Cent. Hudson Gas & Elec. Corp. v. Pub. Service Comm’n, 447 U.S. 557 (1980) (limiting commercial speech found constitutional as long as analysis of regulation is performed); Miller v. Calif., 413 U.S. 15 (1973) (limiting free speech protections for obscene materials based on a three-pronged test).

[41] Citizens United, 558 at 76 (Stevens, J., dissenting) (“…corporations have no conscience, no beliefs, no feelings, no thoughts, no dislikes….”).

[42] Id.

[43] Id.

[44] Id.

[45] Id. at 77.

[46] See Texas v. Johnson, 491 U.S. 397 (1989).

[47] See Cohen v. California, 403 U.S. 15 (1971), but see Snyder v. Phelps, 562 U.S.___, 131 S. Ct. 1207 (2011) (upholding an organization’s right to have its members protest on a public sidewalk as protected free speech under the First Amendment).

[48] Citizens United at 77 (Stevens, J., dissenting) (positing the question of “who” actually speaks when a corporation “speaks,” as there are a number of different actors involved in the operation of a corporation versus that of an individual).

[49] See Jessica Levinson, Citizens United Gives Free Speech a High Price, Politico, at http://www.politico.com/news/stories/0612/77647.html (publ’d Jun. 20, 2012).

[50] Id.

[51] Id.

[52] See Santa Clara County v. S. Pac. R.R. Co., 118 U.S. 394, 410 (1886) (holding that a corporation can claim the same Fourteenth Amendment equal protections as a natural person).

[53] See Jeffrey Collins, Justice Scalia on Unlimited Political Ads: Turn Off the TV, Huffington Post, at http://www.huffingtonpost.com/2012/01/21/justice-scalia-on-unlimit_n_1221080.html (publ’d Jan. 21, 2012, 3:41 PM ET).

[54] Id.

[55] Id.

[56] Citizens United at 7 (Scalia, J., concurring).

[57] Id.

[58] Id. at 9.

[59] Id. at 8.

[60] See Collins, supra note 47.

[61] Id.

[62] Id.

[63] Citizens United at 8 (Scalia, J., concurring).

[64] See Lauren Finney, The Internet vs. Citizens United, Bill Moyers, at http://billmoyers.com/2012/06/07/the-internet-v-citizens-united/ (publ’d Jun. 7, 2012).

[65] See CBS News, Ex-Justice John Paul Stevens Keeps Doubts on Supreme Court’s Citizens United ruling, CBSNews.com, at http://www.cbsnews.com/8301-250_162-57444175/ex-justice-john-paul-stevens-keeps-doubts-on-supreme-courts-citizens-united-ruling/, (publ’d May 30, 2012, 10:38 PM).

[66] See Lessig, supra note 4.

[67] See Crawford v. Marion County Elec. Board, 553 U.S. 181, 187 (2008).

[68] See Austin, 494 U.S. at 678 (Stevens, J., concurring) (“The overriding concern behind the enactment of statutes . . . was the problem of corruption of elected representatives through the creation of political debts.”)

[69] Id.

[70] Id. at 669 (Marshall, J.).

[71] See Lessig, supra note 4.

[72] Id.

[73] Id.

[74] Id.

[75] Id.

[76] See Center for Responsive Politics, Total Outside Spending by Election Cycle, Excluding Party Committees, OpenSecrets.org, at http://www.opensecrets.org/outsidespending/cycle_tots.php?cycle=2012&view=Y&chart=N#viewpt (viewed Jul. 21, 2012).

[77] Id.

[78] See Lessig, supra note 4.

[79] Id.

[80] See Dan Froomkin, Disclose Act Vote Railroaded by Mitch McConnell, Senate Dems Claim, Huffington Post, at http://www.huffingtonpost.com/2012/07/18/disclose-act_n_1683573.html (publ’d Jul. 18, 2012). The DISCLOSE Act would have required disclosure of a donor of $10,000 or more by any independent groups which spends a minimum of $10,000 on campaign ads. Id.

[81] See, e.g., John Dalberg-Acton, 1st Baron Acton, Wikipedia, at http://en.wikipedia.org/wiki/John_Dalberg-Acton,_1st_Baron_Acton (last updated Jun. 13, 2012).