This decision is absurd on its face. Millions of Muslims protested against Islamization last summer, and toppled the regime that was fostering that Islamization. These people were mostly Muslims. Were they all “anti-Muslim bigots” intent on “disparaging Islam”?
Pamela Geller comments here. And Eugene Volokh in the Washington Post writes that this decision was unconstitutional:
My tentative view is that the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional. Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination. But I’m not sure that courts will ultimately see this my way; so far they haven’t been inclined to do so, precisely because the exclusion of a mark from federal registration leaves people entirely free to use the mark.
“Federal Circuit Court of Appeals Upholds Denial of ‘Stop the Islamisation of America’ Trademark,” American Freedom Law Center, May 14, 2014:
Washington, D.C. (May 14, 2014) — Yesterday, in an opinion that relied upon irrelevant essays and anonymous comments posted on blogs, a three-judge panel in the United States Court of Appeals for the Federal Circuit upheld the Trademark Trial & Appeal Board’s (TTAB) denial of the trademark application for “Stop the Islamisation of America” or “SIOA.” In its ruling, the court agreed with the TTAB and the United States Patent and Trademark Office (USPTO) that the trademark disparaged Muslims and linked them to terrorism.
In February 2010, Pamela Geller and Robert Spencer, executive directors of the American Freedom Defense Initiative (AFDI), an advocacy organization that raises awareness about the terror threat posed by sharia-adherent Islamists, applied to the USPTO to register the trademark “Stop the Islamisation of America” to foster and provide an understanding of how to prevent sharia-based tyranny and Islamist terrorism.
The USPTO rejected AFDI’s application in an “Office Action” based on the following analysis: (1) “Islamisation” means converting to Islam or “to make Islamic;” and (2), “Stop” would be understood to mean that “action must be taken to cease, or put an end to, converting or making people in America conform to Islam.” Thus, the trademark, according to the “Office Action” ruling, disparaged Muslims and linked them to terrorism.
The American Freedom Law Center (AFLC), which is representing the trademark applicants, argued that the term “Islamisation” is not broadly defined as a conversion of an individual; or even a whole society to the religion of Islam; or to the state of being more culturally Islamic. Rather, AFLC argued, “Islamisation” is the process of implementing sharia into a society in order to convert that society to a sharia-compliant Islamic state.
To support its argument, AFLC introduced Congressional testimony, course materials, academic articles, and a doctoral dissertation demonstrating that Muslims and non-Muslims alike used “Islamisation” and understood it to be the political movement to implement Islamic law or sharia as the law of the land.
Nevertheless, while stating that there is “peaceful political Islamisation,” the court agreed with the TTAB’s conclusion that such evidence was “less widely available” and “not necessarily reflective of the general public’s understanding” of Islamisation. The general public’s understanding, the court decided, was that “Islamisation” means to “convert to Islam.”
David Yerushalmi, AFLC Co-Founder and Senior Counsel, commented:
“In a blatant disregard of the only probative evidence in the record, the court decided to side with the Trademark Office and to just make up facts. The only facts in the record are that Muslims themselves understood Islamisation to be the political and military conversion of a civil society to a sharia-based theocracy. There was not one piece of evidence that a single Muslim felt disparaged by the mark.”
Yerushalmi continued:
“In short, the court ignored the reality that ‘Stop the Islamisation of America’ neither disparages nor brings into disrepute law-abiding Muslims because it quite appropriately distinguishes between Islamisation as a process hostile to our political system on the one hand and the law-abiding practice of Islam as an entirely protected First Amendment exercise of religious freedom on the other. This ruling demonstrates how far sharia-adherent Islamists are insulated by political correctness.”
AFLC will likely seek review of this decision in the U.S. Supreme Court.
jihadnews.us says
I feel as though we are just a few steps away from appealing to caliph for redress .
jihad3tracker says
As far as I can determine, what actually swung this decision against AFDI is that this appellate judge — and probably the original hearing judge — were so worried about what they would find in learning about Sharia’s theocratic foundation, that they refused to self-educate.
Thus remaining among the ignorant bench which steadily opens more doors to stealth jihad….
Joe Murphy says
Note to Pamela and Robert: I agree with Eugene Volokh that this decision is unconstitutional.
You could appeal to the Supreme Court over the errors you cite; but I think you should *also* appeal the **constitutionality** of the law to the Supreme Court.
Maybe your lawyers have good arguments lined up. I have what I think is a good argument right here which you might want to look at. ( I am focusing on the Web here in the argument, but you can broaden it.)
ARGUMENT:
The trademark law in question violates rights that emanate from free speech and the right of assembly together.
The constitution guarantees ‘the right of the people peaceably to assemble’. What does ‘assemble’ mean here? It means to get together with people of shared views and exchange ideas. Before the Digital Age and the Web, ‘assembly’ was largely physical; getting together to exchange views meant getting together physically to exchange views. In the Digital Age, it became possible to ‘assemble’ on the Web, and the ability to ‘assemble’ on the Web has become crucial; and the Web is where many now do ‘assemble’ in the constitutional sense, in blogs, social media, online forums and so on.
The Government, in its trademark law in question, grants trademark protection as a boon to people. And this boon helps them in ‘assembling’, especially on the Web, but not exclusively on the Web. However, the government has applied this boon selectively, and excluded its use for the purpose of assembling for the dissemination of certain types of opinions, opinions, the dissemination of which, are SUPPOSED to be protected by the right to free speech.
The outcome is that Pamela Geller, in being denied her trademark, cannot enjoy the same right of assembly, to disseminate her opinions on the Web and elsewhere, as other people would have for other opinions which are no less and no more protected by the right to free speech.
The law is violating Pamela Geller’s right to free speech and her right to ‘peaceably assemble’ at once. Geller is being denied her right, peaceably to assemble, on the basis of the views she wishes to assemble for, views which should be constitutionally protected.
Analogies might be helpful. Suppose the government built a highway between two cities. It allows people to travel freely on the highway. EXCEPT that it has a law that does not allow people to travel on the highway to go to political gatherings for a certain kind of viewpoint (though they can still take the minor roads for this purpose). Would this law be unconstitutional? Of course it would. In the same way that the law in question is unconstitutional against Pamela Geller, but with the convenience of the highway substituting for the usefulness of a trademark. This analogy should also help break down the argument that she still gets to ‘use the mark anyway’:
>> precisely because the exclusion of a mark from federal registration leaves people entirely free to use the mark.
This is not enough. In the highway analogy, people can still use the minor roads, rather than the highway, to assemble, and yet this is obviously unconstitutional. People’s ability to assemble is curtailed, reduced and limited, for reasons based on the viewpoint around which they wish to assemble, which is unconstitutional. This is government-imposed curtailment of opinions and assembly.
jihad3tracker says
Thank you, Mr. Murphy, for this solid foundation upon which to build.
I am not an attorney, but do spend a great deal of time writing to persuade. For me and perhaps for you, it is almost always necessary to reflect upon the logic of first & second drafts.
Please keep going with this correspondence if there is time available… I am certain many JW readers here will also consider your argument — perhaps adding their own elements and considerations.
Cal says
There is no such thing as “Islamisation of America”.
David Howard says
Where have you been? The muslims are working on it. People like you are most helpful to them.
Brian Hoff says
Your change of wining in the hight court isnot too good. First you attack than peaceful religion like than bigot. In america an huge majority of muslim in america donot support Boro Haram like you claim. Many scholar of Islam donot support many of thing the founder of Islam did, not everything the founder did is Sunna, what is Sunna can change in time.
jihadnews.us says
[quote]Many scholar of Islam donot support many of thing the founder of Islam did, not everything the founder did is Sunna[/quote]
Really? Care to name a few ?
Jay Boo says
‘Moderate’ Muslims have been trying to improve the image of Muslims since 911.
Sept 11 2001 was the official date that some extremists hijacked the ROP with their ‘misunderstanding’ of Islam’s long track record of nothing but peaceful intentions (WINK, WINK).
911( the beginning of a misunderstanding)
AS IF
Will Doohan says
Why not just do what the Jihadists do? Anytime your opponents mount any kind of Legal challenge to your groups name, change it.
I remember reading a book about the Iraq war (I don’t remember which one, I read a few) and they had a list of all the ‘insurgent’ groups. It was more than two pages long and every combination of word groupings containing ‘Jihad’ or ‘uprising’ or ‘Islamic group for blah blah blah’ you could possibly think of was in there.
Were there that many different groups? Of course not. There were just a few and they were trying to fool the kuffar into thinking there were hundreds. We need to play the same game.
jihad3tracker says
Good point — But for Ms. Geller and AFLC, an image and slogan is needed which is definitely going to be given trademark protection.
We here at JW have seen that USPTO judges refuse to learn ( or disregarding what they learn ) about Islam, including the goal of converting every “infidel”, by force if necessary.
Such would be the message conveyed by the art & words of a relevant trademark; with politically “correct” hearing officers, however, such truth is prohibited.
Bezelel says
Pamela is frightening to them. Thank you Pamela,
The Dept’ of Social Engineering has a conflict of interest issue.
Joe Murphy says
Hi Robert,
In the US Federal courts, as I understand it you can’t argue unconstitutionality (or any issue for that matter) on appeal if you have not brought that issue up in first instance. If constitutionality has not been brought up as an issue, I think Pamela will have to bring a separate case, starting in Federal District Court against the unconstitutionality of the law. I personally believe that with the right arguments (and I hope I can help here) she has a very good chance of success.
I can not reconcile a denial of her rights here with American constitutional jurisprudence over the last century including the decisions of the ‘Skokie Affair’ which are mentioned below.
I’ve looked over the arguments I made yesterday, and like you implied, it needed a bit of tweaking. Here’s a revised version, along with the best set of counterarguments I can think of, and rebuttals to those counterarguments. Let me know what you think.
I appreciate the work that you and Pamela are doing, and this is my effort to help.
-Joe.
ARGUMENT:
—————–
The words, ‘Stop Islamization of America’ are unarguably constitutionally-protected speech in the United States. Pamela Geller calls her group ‘Stop Islamization of America’ and seeks trademark protection. She is denied trademark protection, effectively due to the content of the speech involved. The trademark law in question violates First-Amendment rights of free speech and the right of assembly and association.
Section 2(a) of the Trademark Act provides that the Board may refuse an application when the trademark “[c]onsists of or comprises … matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The constitution guarantees ‘the right of the people peaceably to assemble’. What does ‘assemble’ mean here? It means to associate, to get together with people of shared views and exchange ideas, and to network. Before the Digital Age and the Worldwide Web, this ‘assembly’ was seen as largely physical; getting together to exchange views meant getting together physically to exchange views. But even before the Digital Age, there was an element to ‘assembling’ that was not exclusively of physical bodies; the forming of groups and associations and the networking practices achieved through the mail, advertisements, and later telephone and other media was important and was imbued with the right of assembly and association. In the Digital Age, it became possible to effectively ‘assemble’ entirely on the Worldwide Web, and the ability to ‘assemble’ and associate on the Web has become crucial; and the Web is where many now do ‘assemble’ and associate in the constitutional sense, in blogs, social media, online forums and so on.
The Government, in its trademark law in question, grants trademark protection as a boon to people. And this boon helps them in ‘assembling’ and associating in many avenues and media, including the Web. However, the government has applied this boon selectively, and effectively limited its use and effectiveness for the process of assembling for the dissemination of certain types of opinions—opinions, the dissemination of which, are SUPPOSED to be protected by the right to free speech and the right of assembly.
The outcome is that Pamela Geller, in being denied her trademark, cannot enjoy the same unimpeded right of assembly, to disseminate her opinions on the Web and elsewhere, as other people would have for other opinions which are supposedly no more protected by the right to free speech. The trademark she seeks ‘Stop Islamization of America’ is being denied, while a trademark ‘Islam for America’ would certainly not be denied.
A possible argument in the defense of the current trademark law is that the exclusion of a mark from federal registration leaves people entirely free to use the mark without that protection; or, alternatively, that she can choose and trademark another name for her group that satisfies the trademark law.
But these arguments fail on close inspection. To selectively impede the right to free sppech is to violate the right to free speech. An analogy might be helpful here, and I’ll present one which I will call the ‘highway analogy’. Suppose the government built a highway between two cities. It allows people to travel freely on the highway, EXCEPT that it makes a law that prohibits people from traveling on the highway to go to political gatherings for a certain kind of viewpoint, namely for viewpoints which, using the exact wording of the trademark law, “comprises … matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute”. Note that this law does not actually prohibit assembling and associating for these purposes, it merely impedes it, as people may still use the minor roads for these purposes. Would this law be unconstitutional? Of course it is. I do not think that there is any case that it is not. And it is unconstitutional in the very same way that the law in question is unconstitutional against Pamela Geller, but with the unimpeded use of the road system substituted for the unimpeded use of the trademark system. The argument that her rights are not infringed because she can ‘still use the mark anyway without the trademark protection’, and the argument that she can ‘still trademark another mark that is not offensive’, are both exposed because they are clearly analogous to the failing argument that people can ‘still use the minor roads’ in the highway analogy. In both Geller’s case and the highway analogy, a full boon is granted by government for those assembling around certain views, but a limited boon is granted for those assembling around certain other views. This selective protection is violation.
The evolution of constitutional law of free speech in America has gone in one clear direction: the right not to be offended is effectively nonexistent in the face of the right to free speech and freedom of association. In the case of the National Socialist Party of America v. Village of Skokie the outcome was powerfully in favor of the first-amendment right to free speech and assembly strongly overriding the individual’s interest in not being offended. The courts overturned a prohibition against an American Nazi party’s marching in a predominantly Jewish village, even in which a considerable fraction were holocaust survivors, and even overturned a prohibition against them exhibiting the swastika in the process of marching.
For free speech, some things are indeed sacrificed, and there can be a perception that too much was sacrificed in Skokie. There can be a perception that the Skokie decisions were in favor of Nazism and tyranny. But the historical Nazi regime was enabled by extreme curtailment of the right to free speech and a government-controlled press. In the Skokie decisions, the sensibilities of the Holocaust survivors of Skokie were not as it first appears sacrificed to Nazism and tyranny; rather, in the deeper view, their sensibilities were sacrificed to the prevention of Nazism and tyranny.
It is fitting then that Pamela Geller, herself a Jew, should reap the benefits of what was sacrificed by the holocaust survivors in Skokie. In her opposition to tyranny, in her opposition to a religion whose most holy book speaks in the most hateful terms of Jews and other non-Muslims, because of what was sacrificed by the holocaust survivors of Skokie, she has the right to assemble unimpeded by what other people find offensive, and defend her nation and her people against tyranny and oppression.
END OF ARGUMENT
—————————
——– ——–
COUNTERARGUMENTS AND REBUTTALS
—————–
Counterargument 1: The government is not impeding Geller’s point of view directly. The law is not selectively against Geller’s point of view.
Reply Counterargument 1: The law IS selective against Geller’s viewpoint. If there were another group which wanted to call itself, ‘People for the Islamization of America’, the trademark law would NOT inhibit them from getting a trademark. How can the government effectively protect one political point of view while effectively inhibiting another? In anything political, there are views that other people find inherently offensive, and in America, being offended carries no weight against the right to free speech.
——– ——–
Counterargument 2: The trademark is not very important to Geller for her purpose of disseminating her views, so the government is not doing much to impede Geller, so the measure is proportional.
Reply Counterargument 2:
The idea that trademark protection is not important for political groups is absurd. To believe it, we would have to believe that all of those movements who do actually trademark their name are fools for bothering to do so, and that the law is behaving wastefully by allowing them to do so.
But I will mention a non-exhaustive list of how she is harmed by being denied trademark protection. Without this legal protection for Geller, she is more vulnerable to other groups co-opting her group’s name and misusing it. This can be done by imposter groups who largely share her views, and parasitically use her advertisements and the name she has earned, and also by those who are opposed to her views and who wish to undermine her group. She is vulnerable to her group’s gaining a bad reputation due to misbehaviors of either type of impersonating group. It also becomes more difficult to protect her group’s ability to be found on search engines, or found and contacted in any way.
No, the protection of a trademark is significant, and it is being denied to Geller.
——– ——–
Counterargument 3: Geller can still use another trademark, and can disseminate her views equally well with that other trademark.
Reply Counterargument 3: An argument that Geller CAN still obtain another trademark is correct but irrelevant; an argument that she can EQUALLY WELL use another trademark is totally false. In whose opinion are these other, presumed non-offensive and legal trademarks equally good? Not in Geller’s opinion. She has a right to choose the name of her group as part of her free speech and expression and right of association. It is therefore her opinion here that matters, not ours or the government’s. The appropriate name for her group is what her opinion determines is the appropriate name for her group; she is expressing herself in the name of her group. She has the right to make the name of her group catchy, meaningful, provocative and effective in the manner she sees fit, according to opinions she has. It is not the right of the government to tyrannically circumscribe her choice on the basis that other people will be offended by her choice, or to paternalistically maintain that other choices would be better for her. By denying her trademark protection based on the name of her group, the government is effectively undermining her ability to choose the name of her group, and through this, her right to freedom of expression and association.
——– ——–
Counterargument 4: There is an overriding public-interest reason to prohibit this trademark. Not doing so powerfully opens the floodgates to very disparaging trademarks. How would you like it if there was a trademark ‘Stop Encroachment of the Monkey Irish’?
Reply Counterargument 4: The specious ‘right’ not to be offended has disappeared in American constitutional law decades ago. America will allow the circumscribing of free speech only on the narrowest of grounds. An assumed ‘right not to be offended’ is a wedge in the door for the destruction of the American right to free speech as we know it, and opens the door to European-style semi-free speech, which is not American free speech.
The statement that removal of these trademark prohibitions “open the door to very disparaging trademarks” is undoubtedly correct on its face. To the question “How would you like it if there was a trademark ‘Stop Encroachment of the Monkey Irish’?”, I can say that as a person, not just as an Irish American, in my considered opinion, we are MUCH better off with the evils of free speech than with the much greater evils of fettered and controlled speech. I will put up with insults, but not with government control of the press which can lead to extermination camps. Therefore, I accept such offensive trademarks as a necessary evil, just as the protected offensive speech itself which is behind such a trademark, is a necessary evil. The trademark law SHOULD be open to trademarks such as ‘Stop Encroachment of the Monkey Irish’ because the constitution requires it. Let those little floodgates be opened; nothing significant will be swept away, and something very significant will be preserved.
It is already established that I do not have a right that others do not name their group ‘Stop Encroachment of the Monkey Irish’. If my right that others do not name their group in this way does not exist, why then do I have such a strong right that others do not *trademark* such a name? And why would this right be stronger than the ‘right’ of a holocaust survivor not to see a neo-Nazi party march in full regalia with swastika through their village of Skokie? Why? The latter right has been effectively ruled not to exist, so the former should not exist either.
Counterargument 4b: If this restrictive trademark law were not in place, the US Goverment would be forced to keep records of very offensive trademarks in public places and on the Worldwide Web. This effectively forces the government to ‘speak’ these offensive words.
Reply Counterargument 4b: These records will not represent the government ‘speaking’ the presumed offensive words, rather they represent the government recording what someone else is speaking. This happens already in the records of court cases, regardless of the offensiveness of those words. This will be a thing for the public to get used to and could make a splash at first but will be no big deal eventually.
——– ——–
Counterargument 5: Without a prohibition like this, the door will be open to trademarks which incite hatred and violence against vulnerable groups.
Reply to counterargument 5:
The argument I am presenting here is essentially that constitutionally protected speech must not be denied trademark protection. I am not arguing that speech which is not constitutionally protected must not be denied trademark protection. Incitement to violence is not constitutionally protected speech, while there is no question that ‘Stop Islamization of America’ IS constitutionally protected speech. ‘Incitement to violence’ is a narrowly- construed concept. A trademark such as ‘Kill all the Irish’ contains incitement to violence and is not constitutionally protected. But a trademark which is arguably hateful of the Irish, such as ‘Stop Encroachment of the Monkey Irish’ does not cross the line into incitement to violence.
Because prohibition of ‘incitement to hatred’ is the wedge in the door to take away the American-style right of free speech away almost entirely, in America, prohibition of broadly-defined ‘incitement to hatred’ is effectively unconstitutional. (This is part of the strong contrast between American free speech and European-style semi-free speech.)
——– ——–
Counterargument 6: This trademark law’s prohibition is analogous to a prohibition on ‘fighting words’ which is constitutionally allowed.
Reply Counterargument 6:
The concept of ‘fighting words’, in the prohibition of fighting words, has to be very narrowly construed to satisfy constitutionality, and the definition takes a view of the manner in which they are delivered, and usually requires direct delivery to a person. This necessarily narrow construal does not extend to trademarking. Again, there is no question that ‘Stop Islamization of America’ is protected speech.
——– ——–
Counterargument 7: The constitutional right of ‘freedom of assembly’ refers to physical assembly only. There is no constitutional right to assembly on the internet.
Reply Counterargument 7:
The argument I have proposed in no way relies on the existence of the World WIde Web; rather, the existence of the Web and the presence of the Digital Age arguably increases somewhat the damage done by being denied a trademark. But even without the Web, the damage done by being denied a trademark is substantial; if this were not the case, groups would not have bothered to trademark their names prior to the existence Web.
In any case, there is indeed an obvious right to assemble on the internet. The ‘right of assembly’ is really only a derivative of the right to free speech. It is an affirmation that the right to free speech includes the right to certain necessary practicalities needed to enable free speech and exchange of ideas, namely, the right to network, associate, and disseminate ideas. This happens to be occurring a lot on the Web these days, so the right of assembly must logically extend to the Web.
——— ———————————————————————–
———- ———————————————————————-
QUESTIONS FOR THE OPPOSITION and how to corner the opposition:
Q1 ———–
Do you agree that the law in the ‘highway analogy’ in the argument above is unconstitutional? If you do not believe it is unconstitutional, you believe that the federal government could tomorrow pass a law prohibiting the use of highways for the purpose of going to political gatherings that offend other people? This would be absurdly Unamerican, wouldn’t it? And wouldn’t it contradict the jurisprudence from Skokie?
Since you agree that the law in the ‘highway analogy’ is unconstitutional, can you differentiate in any meaningful constitutional sense, the ‘highway analogy’ from Geller’s case? I can offer the following strong similarities:
— The law of both in effective ways curtail and impede the right to peaceably assemble, to network and associate with others of like views.
— The law of both do this selectively for those views which “comprise … matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” but do not do it for the views which are not in this category.
— The laws of both have in common that while they impede the expression of viewpoints and peaceable assembly based on those viewpoints, they do not outright prohibit peaceable assembly based on those viewpoints and the expression of them.
The highway analogy is very apt, and unconstitutionality in one case implies unconstitutionality in the other.
There is no case that an impeding of the use of the road system for the purpose of peaceable assembly around the special viewpoints listed is not an infringement of the right to peaceable assembly, and likewise there is no case that an impeding of the use of the trademarking system for the purpose of peaceable assembly around the special viewpoints listed is not an infringement of the right to peaceable assembly.
Q2 ————-
You accept that it is okay to have free speech which says ‘Stop Islamization of America’, despite the inevitable ‘offense’ it causes to some people. You do, however, wish to stop the trademark ‘Stop Islamization of America’ on offense-giving grounds. It seems that the ADDITIONAL offensiveness of the trademarking of the phrase, as opposed to the actual phrase itself, is a big issue. Why is this?
Is someone’s presumed ‘right’ not to be offended by the additional offensiveness of the trademarking of the name ‘Stop Islamization of America’, over and above the mere offensiveness of the idea itself, is this presumed ‘right’ greater than the ‘right’ of a holocaust survivor not to see a neo-Nazi party march in full regalia through their village? Do you disagree then with the Skokie decisions, and would you like to roll back the jurisprudence on the constitutional right to freedom of speech and association in the last century?
How can Freedom of Association weigh so powerfully against presumed offense-taking in the Skokie decisions, and yet be so weak against presumed offence-taking in Geller’s case ?
-Joe Murphy