Free Speech
At a Republican Presidential primary debate in 2015, U.S. Senator, Marco Rubio, attempting to rattle the frontrunner, commented that Donald Trump has small hands. Trump wasn’t rattled, but the observation did get some traction in the media. Enough so that a man named Steve Elster filed a trademark application for the phrase, “Trump too small.” He thought it might sell some t-shirts. The U.S. Patent and Trademark Office denied Elster’s application. A statute bars a trademark that “identifies a particular individual without that person’s written consent.” Elster sued, and now the U.S. Supreme Court will be deciding whether the denial of the trademark violates Elster’s First Amendment rights.
Elster argues that the statute violates the First Amendment generally, but he also argues that the way the Patent and Trademark Office applies the statute is improper. He points out that the Office has allowed Trademarks for “Joe 2020,” “Biden President,” and “Hillary for America,” without explicit consent, but has refused to trademark “No Joe 2024,” “Hilary for Prison 2016,” and “Impeach 46.” This case is also interesting in that it has the Biden Solicitor General arguing the pro-Trump position. The upside is, we should know by this summer whether you can place your “Trump too small” t-shirt order.
More free speech
James Freed was the city manager for Port Huron, Michigan during the pandemic. Port Huron resident, Kevin Lindke, did not like the way Freed was handling the pandemic restrictions. Lindke took his frustrations to Freed’s personal Facebook page. Freed deleted Lindke’s comments, and ultimately blocked Lindke entirely. Lindke filed suit claiming that Freed, as a public official, violated Lindke’s First Amendment right to free speech by deleting and blocking his comments. Freed disagrees, arguing that Lindke was commenting on his personal Facebook page, not his government page, so no government actor was involved in suppressing Lindke’s speech. The case has now made it all the way to the U.S. Supreme Court.
The Supreme Court heard Lindke v. Freed along with another social media free speech case, O’Connor-Ratcliff v. Garnier, this past Tuesday. In O’Connor, Michelle O’Connor-Ratcliff was a member of a southern California school board. O’Connor-Ratcliff maintained a personal Facebook page, but unlike Freed, she used her personal page to post about school board matters. During the pandemic, two parents began complaining on O’Connor-Ratcliff’s page about school matters. O’Connor-Ratcliff deleted their comments and blocked the parents. The parents filed suit, and the O’Connor case joined Lindke as a companion case at the Supreme Court.
Given that the Court has taken up these two cases with differing posting patterns, we can expect the Court to clarify the First Amendment standards for government officials and their social media usage.
Still more free speech
Elon Musk appeared on the Joe Rogan podcast this week, where he discussed why he purchased Twitter, now called X. In the full interview, Musk describes the old Twitter as “effectively an arm of the federal government” that suppressed conservative speech at ten times the rate of other speech. You can read an excerpt of the discussion here.
Textualism
Officer Justin Gage sat across the street from a shady motel keeping an eye out for drug deals. He was in an unmarked police car, wearing jeans and a sweatshirt. This was all part of his work with the Elkhart County Community Policing Unit. Soon, Officer Gage saw a white Buick fail to signal turns near the motel. He fired up the lights and sirens on his unmarked car and pulled the Buick over. Before exiting his car, Officer Gage put on a vest. The vest said “police” in large, shiny letters across the front. Affixed to the vest were Gage’s badge, his gun, his yellow taser, a body camera, a police radio, a notepad and a pen. During the traffic stop, Officer Gage located methamphetamine on the driver, James Cassity, and Cassity was charged with possessing the drug.
Prior to trial, Cassity moved to suppress the methamphetamine arguing that the traffic stop was bad because Officer Gage was not in compliance with the Indiana Police Uniform Statute. That statute says that before an officer can stop someone, he must be “wearing a distinctive uniform and a badge of authority.” Was Officer Gage’s vest a “distinctive uniform?” The trial court said yes. The Indiana Court of Appeals this week said no.
The Court of Appeals relied on a textualist analysis of the Police Uniform Statute. The Court noted first that the statute does not define “distinctive uniform.” The Court then moved to discern the common understanding of “distinctive” and “uniform.” The Court relied on dictionary definitions of the words, and looked to other Indiana statutes that use the terms. The Court ultimately determined that a “distinctive uniform” means that the uniform must not only be identifiable as a police uniform, but must be distinctive to a particular agency so that an observer may distinguish between municipal, county level, and state police. The Court said, “a ‘distinctive uniform’ is the specific design, color, and patches officially adopted by the governmental authority employing the police officer so as to inform the public that the person stopping them is, in fact, a police officer employed by that respective department.”
Here at Judex we applaud the use of textual analysis in court opinions. Yet, the Court of Appeals may have gone beyond that here. The Court appears to be adding the requirement that “distinctive” means as to a particular police agency rather than simply distinctly a police officer. Perhaps the Indiana Supreme Court will take up the case and offer us more textualism to write about.