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.

Image Protection at Universities

at_stanford_universityThe Chronicle of Higher Education (subscription required so no link) notes that Hollywood tends to ask universities and colleges for permission before they set their films or television shows at a particular campus. So Felicity attends University of New York instead of NYU, and Legally Blonde is set at Harvard instead of, wait for it … University of Chicago? Odd but apparently true (my guess is that this turn of events helped the film. No offense to Chicago but as a matter of pop culture Harvard probably takes the prize). One possible culprit according to the article is our friend US News and World Report and the ranking game. Since the report started ranking undergraduate institutions films reference real schools, rather than random State U, 29 percent of the time as opposed to 19 percent before the US News games began. The claim is that references might seem to be endorsements. So Stanford only allows “aspirational” portrayals; read here goody-goody overachievers. The article claims that Stealing Harvard was originally Stealing Stanford, but the farm rejected that idea “Since Stanford is need blind” and the story of needing to steal to go to the school would be unreal (as many fictional stories are). In contrast, Harvard seems to realize that a fictional story is just that and seems more generous about the names and so on. Note that most schools are more restrictive about shooting on campus but may embrace the idea for the fees they can charge.

All well and good, but whether there really is a trademark claim as the article suggests and the schools seem to think (note that Dawson’s Creek also wished to avoid conflict and invented Worthington University as a generic Ivy although ironically shot at Duke) is troubling. The expansive notion of association seems to fuel this perspective. But as Sandy Rierson and I argue in the Confronting the Genericisim Conundrum uses such as these are expressive and in that sense irrelevant to the market transaction trademark is supposed to be about. On a similar wavelength Mark Lemley and Mark McKenna seem to be arguing that other uses of trademarks are not relevant to trademark analysis (To be clear, I have yet to read the paper, and it may be that this sort of use would be actionable according to Mark and Mark (or dare I say it? Dare. Dare. Mark y Mark?).

In short, if one considers the feedback loop in play here, the more expressive uses that are made, the less likely people will think that Standford endorsed a portrayal. In addition, what about more critical commentary that could be set a university? Setting up a system of permissions is dangerous. Last, maybe Harvard has it correct: people are not that stupid. They can tell the difference between a fictional story and a claim to reality. Can’t they?

Image Source: Wikicommons
By: Yukihiro Matsuda from Kyoto (and Osaka), Japan

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