Mediaboss Marketing

The months-long legal dispute of publisher Activision trying to take down an indie web-based incremental strategy board game to safeguard its lucrative Warzone trademark has hit a new lawful curve.

According to court documents obtained for a hearing which took place in the United States District Court for the Central District of California earlier in the month, plaintiff Activision admitted that defendant Warzone.com was the first one to use the Warzone trademark in 2017, nearly three years before Call of Duty: Warzone was officially released.

However, Activision still argues that its use of the Warzone trademark as the title for its [Call of Duty] game is protected under the First Amendment and as such seeks massive damages from the defendant for reverse trademark infringement. That in addition to forcing the indie developer to completely abandon the Warzone trademark for its web-base game.

Activision has now forwarded a motion to dismiss any and all counterclaims made by the defendant. Warzone.com has in return pleaded that if the motion to dismiss is accepted by the court, it would signal that a corporate giant can claim the mark of a direct competitor without the claimant even being afforded an opportunity via discovery to explore the issues presented, merely because the defendant is using the claimants mark in the title of an expressive work.

It would mean that a large corporation can engage in reverse trademark confusion with impunity even filing for the same trademark for the identical description of goods. Such an outcome would place a fist not a thumb firmly on the First Amendment side of the scale balancing the constitutional interests between Lanham Act protection and free expression.

Activision sued Warzone.com several months back for using the same name as its own battle royale phenomenon despite Call of Duty being at least three years late. In a statement given to SegmentNext earlier today, the makers of Warzone.com reminded that Activision made this a legal dispute after endless effort by us to resolve the situation and now we will fight to the very end.

More:
Activision's Banking On The First Amendment To Win Warzone.com Trademark Lawsuit - SegmentNext

from the criticizing-the-government-still-at-the-top-of-the-1st-Amendment-list dept

When government entities use private companies to interact with the public, it can cause some confusion. Fortunately, this isn't a new problem with no court precedent and/or legal guidelines. For years, government agencies have been utilizing Twitter, Facebook, Instagram, etc. to get their message out to the public and (a bit less frequently) listen to their comments and complaints.

Platforms can moderate content posted to accounts and pages run by public entities without troubling the First Amendment. Government account holders can do the same thing, but the rules aren't exactly the same. There are limits to what content moderation they can engage in on their own. A case involving former president Donald Trump's blocking of critics resulted in an Appeals Court decision that said this was censorship -- a form of viewpoint discrimination that violated these citizens' First Amendment rights.

A decision [PDF] from a federal court in Arkansas arrives at the same conclusion, finding that a page run by local law enforcement engaged in unlawful viewpoint discrimination when it blocked a Facebook user and created its own blocklist of words to moderate comments on its page. (h/t Volokh Conspiracy)

This case actually went in front of a jury, which made a couple of key determinations on First and Fourth Amendment issues. The federal court takes it from there to make it clear what government agencies can and can't do when running official social media accounts.

Plaintiff James Tanner commented on the Arkansas State Police's Facebook page with a generic "this guy sucks" in response to news about the promotion of a state trooper. That post was removed -- then reinstated -- by the State Police.

While that may have been a (temporary) First Amendment violation, the court says this act alone would not create a chilling effect, especially in light of the comment's reinstatement shortly after its deletion.

However, the State Police took more action after Tanner contacted the page via direct message with messages that were far more direct. In response to the State Police's threat to ban him if he used any more profanity in his comments, Tanner stated: "Go Fuck Yourself Facist Pig." For that private message -- seen by no one but Tanner and Captain Kennedy, who handled moderation of the State Police page -- Tanner was blocked. Kennedy compared the block of Tanner as the equivalent of "hanging up" on a rude caller.

The court disagrees. It's not quite the same thing. "Hanging up" on someone terminates a single conversation. What happened here was more analogous to subjecting Tanner to a restraining order that forbade him from speaking to state troopers or about them.

Tanner profanely criticized the State Police for the deletion of his comments. That was protected speech, as "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987). That protection extends to saying "fuck you" to a police officer in person, Thuraraijah v. City of Fort Smith, Arkansas, 925 F.3d 979,985 (8th Cir. 2019), and the Court doesn't see a meaningful difference in the circumstances presented here. Plus, though profane, Tanner's private messages also criticized the actions the State Police took in response to his Facebook comments. The Court finds that the agency's decision to block Tanner was an adverse action that would chill a person of ordinary firmness from continuing in the activity.

[...]

The page administrators can, as Kennedy put it, hang up on Tanner's private messages. They can ignore them. They can delete them. The State Police may not, however, block Tanner from participating in its designated public forum based on his profane private messages. If the State Police had designated an area outside its headquarters as a place for citizens to stand and speak, the agency could not bar Tanner from doing so simply because he had cursed at a Trooper on the telephone.

Adding to the First Amendment violations was the Police's handcrafted blocklist, which added words and phrases not deemed offensive by Facebook's moderation rules. This was apparently unexpectedly revealed during discovery and the blocklist shows the agency engaged in automated viewpoint discrimination.

In addition to selecting a profanity filter setting, Facebook page administrators can also add specific words to a filter list. Corporal Head added the following words: "jackass", "pig", "pigs", "n*gga", "n*gger", "ass", "copper", and "jerk". Doc. 70-14 at ,r 15.

These terms blocked a couple of Tanner's last comments on the State Police page prior to the agency blocking his account completely. The court doesn't care for this at all.

First, it says the agency doesn't even know what content it's blocking because it has yet to obtain a list of terms/phrases blocked by Facebook's moderation efforts. Without this information, it can't definitively testify how much otherwise permissible speech is being blocked by proxy.

Far more troubling is the State Police's artisanal blocklist, which obviously aims to mute as much criticism of law enforcement as possible.

[T]here is no plausible explanation for the words "pig", "pigs"," copper", and "jerk" being on the State Police's list of additional bad words other than impermissible viewpoint discrimination.

This is an additional First Amendment violation, above and beyond what was affirmed by the jury's verdict.

The slang terms "pig", "pigs", and "copper" can have an anti-police bent, but people are free to say those words. The First Amendment protects disrespectful language. And "jerk" has no place on any prohibited-words list, given the context of this page, the agency's justification for having a filter, and the harmlessness of that word. Though some amount of filtering is fine in these circumstances, the State Police's current list of specific words violates the First Amendment.

Tanner wins. The State Police lose and will hopefully learn something from this remedial First Amendment class. Whatever judgment is rendered (Tanner was only asking for nominal damages in one count, but there are multiple allegations here), the State Police will have to pay. Qualified immunity has already been denied and the additional determinations made by the court make it extremely clear this was clearly established violation of Tanner's First Amendment rights.

Thank you for reading this Techdirt post. With so many things competing for everyones attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise and every little bit helps. Thank you.

The Techdirt Team

Filed Under: 1st amendment, muting, police, social media

Read the original here:
Court Tells Arkansas Troopers That Muting Anti-Cop Terms On Its Facebook Page Violates The 1st Amendment - Techdirt

Vice President Kamala Harris delivers virtual remarks to the National Bar Association from the White House in Washington, D.C., July 27, 2021.(Elizabeth Frantz/Pool via Reuters)

What happened to the free exercise of religion?

Editors Note: This article is adapted from Sean Spicers new book Radical Nation: Joe Biden and Kamala Harriss Dangerous Plan for America, published this month.

On January 16, 1993, President George H. W. Bush proclaimed the first Religious Freedom Day, commemorating the anniversary of the 1786 passage of the Virginia Statute for Religious Freedom. That statute was authored by Thomas Jefferson, and it served as a model for the opening lines of the First Amendment. President Bush noted in his Religious Freedom Day proclamation that freedom of religion is the first of all freedoms enumerated in our Bill of Rights.

Every president since Bush has issued a Religious Freedom Day Proclamation on January 16. In 1999, President Bill Clinton called religious freedom a fundamental human right . . . without which a democracy cannot survive. In 2009, President George W. Bush proclaimed religious freedom one of this lands greatest blessings.

In 2013, President Barack Obama opened his proclamation with the statement Foremost among the rights Americans hold sacred is the freedom to worship as we choose. Since then, many Democrats and progressives have adopted the phrase freedom of worship while avoiding the phrase free exercise of religion. The free exercise wording comes from the opening line of the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

It may seem trivial, but theres a big difference between freedom of worship and the free exercise of religion. Those on the left understand the difference, and thats why they speak of freedom of worship and avoid the words of the First Amendment.

Words matter. When politicians speak of freedom of worship, they are saying that you are free to worship any way you choose in your home or in your house of worship. But they dont want your religion to affect the way you live your life in public or the way you conduct your business. Democrats and progressives say that you are perfectly free to pray and worship in any way you choose as long as you do so behind closed doors.

But if you are a Christian businessperson, you must set aside your convictions and pay for your employees abortions. If you are a Christian baker, you must set aside your conscience and create a cake that celebrates a same-sex wedding. You may practice your faith in your house of worship one day a week. The rest of the week, your conscience belongs to the State, not your Creator.

But the First Amendment guarantees much more than freedom of worship. It guarantees the free exercise of religion. This means that you are free to practice your religion wherever you are, 24 hours a day, seven days a week, in every aspect of your life.

The Biden-Harris administration wants to deprive you of the right to live out your conscience and obey your God.

In 2012, Hobby Lobby Stores, Inc., a chain of arts-and-crafts stores owned by the David Green family, filed a lawsuit against the U.S. government over a mandate in the Patient Protection and Affordable Care Act (Obamacare) requiring companies to provide abortifacients. Hobby Lobby argued that the mandate was a violation of the Christian owners First Amendment right to free exercise of religion.

Kamala Harris, in her role as attorney general of California, joined an amicus brief from the attorney general of Massachusetts arguing that Hobby Lobby should be required to provide abortifacient coverage for its employees. Harris reasoned that for-profit corporations are not permitted to hold personal religious beliefs, even when those corporations are wholly owned by a Christian individual or family. She wrote:

Certain rights by their nature are purely personal guarantees that cannot be held by a business corporation (or, in some cases, by any corporation or collective entity). . . . Rights to the free exercise of religious beliefs, whether created by statute or by the Constitution, likewise protect the development and expression of an inner sanctum of personal religious faith. Free-exercise rights have thus also been understood as personal, relating only to individual believers and to a limited class of associations comprising or representing them. . . . Unsurprisingly, there is no tradition of recognizing or accommodating the exercise of such inherently personal rights by ordinary, for-profit business corporations.

According to Kamala Harris, if you run a for-profit business, whether its a little Colorado bakeshop or a multibillion-dollar chain of hobby stores, the First Amendment doesnt apply to you. You are free to practice your religious faith in any way you choose, as long as you keep it within your private inner sanctum. You are not allowed to apply the precepts of your faith to the way you conduct your business. In the public square, you must obey the almighty State, not almighty God.

With the center-left Justice Anthony Kennedy as the swing vote, the U.S. Supreme Court ruled five to four in favor of Hobby Lobby.

But Kamala Harris wasnt finished. Elected to the U.S. Senate in 2017, she introduced the Do No Harm Act. It would amend the Religious Freedom Restoration Act of 1993, stripping religious business owners of their First Amendment rights and forcing them to obey government health-care edicts that violate their religious convictions and moral conscience.

In a press conference promoting the Do No Harm Act, Harris said, The freedom to worship is one of our nations most fundamental rights. She didnt dare quote the actual wording of the First Amendment, which guarantees not merely freedom to worship but thefree exercise of religionin every aspect of our lives.

If you valued reading this article, please consider joining our fight by donating to our Fall Webathon. Your contribution makes it possible for us to continueour mission of speaking truth and defending conservative principles.

Go here to see the original:
Democrats Assault on Religious Liberty Began with an Innocuous-Sounding Phrase - National Review

On Sept. 30, a federal judge dismissed a lawsuit against the University of Georgia and the Board of Regents of the University System of Georgia brought by former Bulldogs baseball player Adam Sasser.

The suit came in response to Sassers permanent release from the UGA baseball team and suspension from campus following an incident that took place at the Georgia-Tennessee football game in Sanford Stadium on Sept. 29, 2018. Spectators filmed and saw Sasser, who is white, in the UGA student section using a racial slur directed at then backup quarterback for Georgia, Justin Fields, who is Black.

The defendants in the lawsuit are listed as the Board of Regents of the University System of Georgia, the University of Georgia, Jere Morehead, both individually and as president of UGA, the UGA Equal Opportunity Office, Eryn Janyce Dawkins, both individually and as director of defendant UGA EOO, the UGA Athletic Association, Edward McMillian Tate, both individually and as Chancellor of Legal Affairs for UGA, and C. Dean Alford, both individually and as a member of Board of Regents of the University System of Georgia.

The ruling states that Counts I, II, III, IV, V and VII, of Sassers second amended complaint, as well Sasser's breach of contract claims against the individual defendants, are dismissed with prejudice, meaning Sasser can not re-file these claims again in court. The ruling for count VI does allow Sasser to re-file this claim but only at the state level and not in federal court, where the original lawsuit was filed.

Count I, which was brought against all defendants, concerned Sassers right to freedom of speech under the First Amendment which guarantees freedom of expression and the 14th Amendment which guarantees all citizens equal protection of the laws as well as due process of law.

Count II regarded Sassers procedural and substantive due process granted by the 14th Amendment and was brought against all defendants.

Count III was brought against the individual defendants in a personal capacity and regarded individual liability Free Speech clause violation. Ultimately, it stated that Sassers removal from the UGA baseball team and other sanctions that were imposed on him had no rational basis because at the time of the incident he didnt pose a threat to himself or others.

Count IV was also brought against all defendants in a personal capacity and regarded procedural and substantive due process. Additionally, it alleged denial of interest in his education by defendants, as well as denial of right to be heard by defendants.

Count V regarded deprivation of equal protection granted in the 14th Amendment and re-alleged and incorporated all previous allegations while challenging the UGA Non-Discrimination and Anti-Harrassment Policy.

Count VI, the only count Sasser can further pursue at the state level, regards breach of contract and alleges that the UGA student handbook and student athletic handbook establish a binding agreement between the Defendants and each UGA student, and alleges that the defendants failed to follow these binding procedures.

Count VII was brought against all defendants and regarded Declaratory Relief and Injunction, realleging all previous counts. Additionally, it alleged that all defendants have committed multiple violations of federal and state law and caused irreversible damage to the plaintiffs future career and employment prospects.

On Sept. 29, 2020, Sasser, who was originally listed in the lawsuit under the name John Doe until he was ordered to file an amended complaint identifying himself by name, filed the federal suit in Georgias Northeast District Court.

He alleged suffering due to extensive damages as the Defendants and UGA Athletic Association caused severe damages, including but not limited to employment damage and thus monetary damages, states the lawsuit.

Additionally, the lawsuit alleged that the defendants and its agents are responsible for depriving Sasser of his constitutional rights under the First Amendment and the Fourteenth Amendment.

The lawsuit states that on Oct. 4, 2018, Dawkins issued findings and sanctions, including suspending Sasser for the remainder of the Fall 2018 semester.

According to the lawsuit, on Oct. 9, 2018, Dawkins revised the sanctions, permitting Sasser to attend classes remotely, but prohibiting him from participating in UGA athletics, attending any UGA home games until Jan. of 2020 and from entering UGA campus, unless given permission by the EOO.

Additionally, the suit states that Sasser was unable to attend all of his classes remotely because he needed his professors permission to do so and it was not possible for all of the classes he was enrolled in.

The rest is here:
Judge dismisses former baseball player's lawsuit against UGA - Red and Black

A group of educators and civil rights groups is challenging Oklahoma's new law limiting public school teachings on race and gender issues in court.

The lawsuit, backed by the American Civil Liberties Union and the ACLU of Oklahoma, was filed Tuesday. The organizations argue that HB 1775, which took effect in May, interferes with students' and educators' First Amendment rights to learn and talk about gender and race issues in school.

This policy also prevents students from discussing in-depth American history that reflects the experiences and viewpoints of "all historically marginalized communities in this country," the ACLU argues.

The groups suing asked the court to declare the law unconstitutional under the First and 14th Amendments. They also requested that a judge issue a preliminary injunction that would put an immediate stop to the policy in Oklahoma.

"All young people deserve to learn an inclusive and accurate history in schools, free from censorship or discrimination," said Emerson Sykes, staff attorney with the ACLU Speech, Privacy, and Technology Project.

The organization said this lawsuit is the first of its kind that challenges a state's effort at limiting instruction on critical race theory, which examines how racism as a social construct intersects with history, policy, the law and other areas. It's an advanced teaching usually reserved for law schools and undergraduate sociology courses.

This concept was pushed into the public consciousness by former President Donald Trump last year. Right-wing activists have since made it a cause clbre and several Republican-led states, including Oklahoma and Idaho, have passed laws attempting to limit its reach in public schools.

But Oklahoma's law doesn't explicitly mention critical race theory in the legislation's text.

HB 1775 states broadly: No public school student in Oklahoma can be required to participate in any form of "mandatory gender or sexual diversity training or counseling." It goes on to say, "Any orientation or requirement that presents any form of race or sex stereotyping or a bias on the basis of race or sex shall be prohibited."

Similarly, lessons showing one race or gender is superior to another or that a person, because of their "race or sex, is inherently racist, sexist or oppressive" are banned.

If teachers are found to be teaching these lessons, they could lose their licenses and schools can lose their accreditation.

"HB 1775 is so poorly drafted in places it is literally indecipherable that districts and teachers have no way of knowing what concepts and ideas are prohibited," ACLU attorney Sykes said. "The bill was intended to inflame a political reaction, not further a legitimate educational interest. These infirmities in the law are all the more troubling because the bill applies to public colleges and universities, where the First Amendment is especially protective of academic freedom."

The ACLU says as a result of the law's approval, school districts in Oklahoma have told teachers not use terms like "diversity" and "white privilege" in the classroom. Books and other literary works dealing with race such as To Kill a Mockingbird and Raisin in the Sun have been removed from reading lists

Some schools have also limited or altogether eliminated diversity, equity and inclusion training for their educators, according to the group.

See the original post here:
Teachers and civil rights groups sue over Oklahoma's ban on critical race theory - NPR