Citizens United, Graffiti, and the Web

We need more outlets to challenge the way things run. Challenging corporations is difficult, necessary, and proper. Someone in San Diego tried to do that. He is losing his case. It turns out that if you scribble anti-bank messages, you could face 13 years in jail. The medium: washable children’s chalk, not spray paint, on the sidewalk in front of banks. The bank: Bank of America. Now, you might think the First Amendment would be an issue here; it’s not. According the news report, “a judge had opted to prevent the defendant’s attorney from ‘mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,’ and the defendant must now stand trial on 13 counts of vandalism.” The defendant was saying other banks were better banks. Bank of America did not like it, claimed it cost $6,000 to clean up the chalk, and apparently used its influence to have the city gang unit investigate and hand the case to the attorney’s office. Given that this defendant may not be allowed to engage in this speech, because of anti-graffiti and, my bet, property laws, all that may be left is the Web. I think offline mediums matter and should be protected. The Web is an alternative, not a substitute. But even on the Web a protester will have problems.

As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine, corporate power to speak has gone up. Corporate power to limit speech has not. A corporate public figure doctrine would allow someone to use a corporation’s logo and name to challenge to corporation on public issues. A corporation’s word mark is its given name; its logo, its face. Just as we would not limit the ability to question and identify human public figures for speech, we should not do so for corporate public figures. A foundational commitment of free speech law, perhaps the foundational commitment, is that public figures don’t and can’t own their reputations. Yet, through trademark and commercial speech doctrines corporations have powerful control over their reputations. If corporations are people for free speech purposes, as a constitutional matter, their control over their reputations can be no greater than the control other public figures have. Corporations cannot have it both ways. Corporations want and receive many of the legal rights natural persons receive. They should be subject to the same limits as other powerful, public figures.

HT: Fred von Lohmann for noting the story on Facebook.

PS. I am not saying corporations should be challenged, because they are corporations. That is silly. In that sense, I would challenge those who challenge, but that’s me.

ICANN Seeks Comment on “Closed Generic” Top Level Domains

ICANN has recently opened a public comment period on the issue of “closed generic” applications under its new gTLD process.  The original application process for new gTLDs was silent on the issue of whether a trademark holder should be granted rights to run a closed registry for a generic character string that may be very significant in the marketplace e.g “.shop”, “.free”. “.store”.  Several markholders (notably Google and Amazon) have spent a lot of money applying for these kinds of gTLDs to run as closed registries, meaning that they would not allow anyone else to register second level domains within those domain spaces.  They argue that they have innovative marketing plans for those domain spaces that would be compromised if they were obliged to allow competitors and others to operate within the domain spaces.  Their competitors and others argue that the Internet should be open and free and that while there are good arguments for “.trademark” names to be run as closed registries, the same should not apply for more generic terms as gTLDs.  If anyone is interested in commenting on this issue, the public comment period runs until March 7 and the instructions are here.