Inns of Court: Free Speech

On February 11, 2016, Judge Cheryl Mills and her Merry Pranksters (including Ariel B. Lee, April Seo, Liza Avedikian, Michael Markowitz, Aaron Clefton, Nick Casper, Janine Ogando, Dean Barbieri and Rita Holder) entertained the Inn with a presentation on free speech. It started off with an illustration on the different types of speech. Is threatening speech treated differently depending on its context?

In this section, Ariel, April and Liza provided a threatening statement in three different contexts: rap song, YouTube video and Facebook post. How does the law handle this? The discussion stemmed from a real case (JC v. Beverly Hills USD, 711. F.Supp.2d 1092 (C.D.. Cal.2010) of somebody recording their friends speaking ill of another friend and then posting the video to YouTube. The student who put the video online got suspended and then sued the school for the suspension. The court applied the “substantial disruption” test from Tinker v. Des Moines 393 U.S. 503 (1969). The court found that the recording had not substantially disrupted the school’s management and reversed the disciplinary action.

However, in Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011), the court found that the school’s disciplinary action was justified for the student’s creation of a webpage, which was largely dedicated to ridiculing a fellow student and inviting 100 “friends” to join the group. In that case, the postings included the statement “Shay has herpes.” The court found that even though the webpage was created by the student off campus, given the targeted, defamatory nature of the speech, aimed at a fellow classmate, it created “actual or nascent” substantial disorder and disruption in the school.

The court further noted that “it was foreseeable in this case that [the student’s] conduct would reach the school via computers, smartphones and other electronic devices, given that most of the group’s members and the target of the group’s harassment were students from their high school. Perhaps the Kowalski judge felt that anybody still using MySpace in 2011 deserved no defense. So say we all.

Next, Michael Markowitz and Nick Casper discussed the First Amendment and sports mascots. Specifically, what are the First Amendment implications of the Washington D.C. football team using the Redskins as their mascot? There have been several challenges to the usage of the Redskins trademark for being disparaging. Is the usage of the term “redskins” disparaging to Native Americans such that its trademark should be revoked?

Over the years, the courts looked at many factors, such as the dictionary definition of the term and whether a substantial composite of the specific group thought the term was disparaging. In one instance, the National Congress of American Indians passed a resolution stating that redskins was a derogatory term. In the end, the U.S Patent and Trademark Office invalidated the Washington football team’s trademark.

Michael and Nick also discussed In Re Tam, No. 14-1203, Fed. Cir. Dec. 22, 2015, which is a Court of Appeals case wherein they stated that exclusion of disparaging trademarks violates the First Amendment. Under this case, the majority stated: “The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks.” This would seem to have a direct impact on the Redskins case. It appears likely that the U.S. Supreme Court will take up this issue soon.

In the next section, the group discussed anti-paparazzi statutes in regard to the First Amendment. Dean Barbieri played noted enfant terrible Justin Bieber. Here, the Biebs was, unsurprisingly, driving a sports car at an unsafe rate of speed. Aaron Clefton, playing a police officer, pulled him over and Rita Holder, playing a paparazzi, started snapping shots. The skit was based on an actual event, and in that case, the photographer chasing Bieber was charged under Vehicle Code section 40008, which increases the punishment for reckless driving and other traffic offenses committed with the intent to capture an image, sound recording or other physical impression of another person for a commercial purpose.

Is this law an unconstitutional restriction on First Amendment rights, though? According to the California Court of Appeal, it is constitutional, because it does not specifically target paparazzi. It is more general regarding harassment and so it passes muster. (Raef v. Appellate Division of the Superior Court of Los Angeles County, 240 Cal. App. 4th 1112 (2015), review denied.)

This was a great meeting with discussion of issues that are topical and are often in the news. The next Inns of Court meeting is set for May 12, 2016. If you are interested in applying for RGMAIOC membership, please contact Patricia Kelly at