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from the humdinger dept

Almost exactly a year ago, we first wrote about a trademark lawsuit brought by AM General LLC, the company that makes Humvee vehicles, and Activision. At issue is the inclusion of historically accurate Humvee vehicles in the publisher's Call of Duty games. AM General decried those depictions as trademark infringement, leading Activision to say its use was protected by the First Amendment, given that the entire goal here was to accurately depict warfare in an artistic fashion. Shortly after, the ESA chimed in with an amicus brief siding with Activision. Given the implications for the gaming industry should AM General win the suit, this was no surprise.

Well, fortunately for creative expression in gaming, the court has ruled and has sided with Activision.

In his ruling this week, though, District Judge George B. Daniels dismissed AM General's claim. That decision hinged in part on a 1989 precedent that established that artistic works could make reference to outside trademarks as long as the usage was relevant to the work and did not "explicitly mislead as to the source of the content or work."

The court then went through an eight-prong "Polaroid" test (named after a precedential 1961 case) to determine whether Activision's use of Humvees amounted to a legally relevant "explicit misleading" that would trump First Amendment protections. As part of that argument, AM General submitted a survey it conducted showing 16 percent of consumers "were confused as to AM General's association with Call of Duty." As Judge Daniels notes, "less than 20 percent confusion regarding two companies' 'association'... is at most some confusion" and does not amount to the "particularly compelling" confusion required by legal precedent.

The court actually continued on in its analysis as to why AM General's claims were nonsense. It's a fairly thorough debunking by the court. Ultimately, however, the court dove into the impact that ruling otherwise would have on the First Amendment rights for artistic expression in mediums where realism is part of the art.

Daniels writes that "if realism is an artistic goal, then the presence in Modern Warfare games of vehicles employed by actual militaries undoubtedly furthers that goal." And even if that commitment to realism causes a modicum of brand confusion in this case, it's not enough to override the First Amendment protections that video games have enjoyed since a 2011 Supreme Court ruling.

In other words, the tiny bit of maybe, potentially confusion that AM General ginned up in its filing doesn't remotely undue the protections artists and content creators enjoy for free and open expression. You know, the type of freedoms that the US Military has helped our country secure... often times using Humvees!

It's good to see a court side with free expression over corporate protectionism every once in a while.

Filed Under: 1st amendment, humvee, trademark, video gamesCompanies: activision, am general

See the article here:
Federal Court Affirms Activision's First Amendment Rights In Using Humvees in 'Call Of Duty' Game - Techdirt

There are some measures officials can use to limit protests, and it's easy to accidentally tiptoe into legally murky territory if you don't know the specifics.

So before you go, read up.

Timothy Zick is a professor of Government and Citizenship at the College of William & Mary Law School. He specializes in constitutional law and the First Amendment, and he's written several books about both, including 2009's "Speech Out of Doors: Preserving First Amendment Liberties in Public Spaces."Emerson Sykes is a staff attorney with the ACLU's Speech, Technology and Privacy Project, who studies free speech protections under the First Amendment. Previously, he worked at the International Center for Not-for-Profit Law to protect free speech in Africa.

1. What are my rights as a protester?

The government can't stop you from peacefully protesting, but they can impose some restrictions on the time, place and manner of the protest -- for example, barring protesters from walking onto a public highway or instituting a curfew that affects when protests end, Sykes said.

They can't block a protest simply because of its content, though.

If protests are planned in advance, organizers may obtain a permit so law enforcement can block off public spaces for them to demonstrate, Sykes said.

The First Amendment does not continue to protect protests that escalate to violence or the destruction of private or public property, he said.

That's when law enforcement has the obligation to respond and deescalate threats of violence, he said.

2. Where can and can't I protest?

A slew of public spaces are OK for protests -- sidewalks, city parks, streets and other public forums are usually lawful, Sykes said.

Some states require you file a permit to block off streets, and the right to assembly doesn't give you the automatic right to march on a public highway, Zick said.

People can be arrested or cited for blocking passage, he said.

On private property, you don't have the right to assemble.

Zick called it the "no man's land" in terms of the First Amendment, and police can move you off the property and keep you from demonstrating there.

They may even have that right to move you even if you're on public property. Special rules apply to government buildings because protests may disrupt business going on inside, Sykes said.

If the protest was permitted, you should be allowed to stay where you are -- but leaving the permitted protest site may unintentionally lead you into prohibited places, he said.

3. Can police or local leaders tell us to disperse?

It depends, Sykes said: If a mayor pleads with people to go home, you have no legal obligation to comply.

If you stay on the street past a curfew -- or if you protest on private property -- you may be cited or arrested.

4. What can I record?

Different states have different rules about audio recording and sharing that without the consent of the people whose voices you recorded, but the visual portion of videos and photos are always protected by the First Amendment, Sykes said.

If you're interfering with legitimate police operations, they can ask you to move. It's best to videotape them from a safe distance.

Police can't ask you to give them your phone or forcibly confiscate it without a search warrant, which they would've needed to obtain from a judge, he said.

5. Someone took a picture of my face at a public protest. Is that allowed?

At a public protest in the United States, you consent to a photo just by being there. Anyone who photographs you protesting in a public place may have a right to use your image, and you may see images of yourself in the media or online, Zick said.

6. What should I pack to stay safe at a protest?

Pack light, Sykes said. He suggests you bring water and a snack at minimum. If you bring a bag, prepare for it to be searched.

In a pandemic, wearing a mask can keep you from breathing in droplets containing coronavirus. Coming within close contact of other protesters could expose you to their spit or sneezes, which may carry the coronavirus.

And if you fear you'll be arrested and will need legal help, memorize or write on your arm the number to a local or national law organization that could assist you in getting out of jail and handling your case afterward, Sykes said.

7. What can -- and can't -- police do during a protest?

It's the responsibility of police to protect your right to peaceful assembly.

They're also empowered to uphold law and order, which gives them broad authority to deescalate threats of violence how they see fit.

How they deescalate that violence depends on local laws and the circumstances under which they use them, which can be difficult to prove in court if you believe they used force unlawfully, Zick said.

Like Sykes said, police do not have the right to search your phone or personal devices without a warrant, which only a judge can grant them.

They also don't have permission to delete content from your phone, so if they tell you to delete a video you took or delete it themselves, they're in the wrong, he said.

8. What can I do if a police officer stops me?

Stay calm. Don't resist. Ask them if you're free to go after speaking with them, Sykes said. If they say yes, calmly walk away and rejoin the protest if it's safe to.

If they say no, and they detain you, don't resist and keep calm, Sykes said. Ask them what crime you're suspected of committing.

9. What can I do if I get arrested?

Some people get arrested intentionally as a form of civil disobedience. But whether or not you planned to get handcuffed, you shouldn't resist arrest, Sykes said.

It's the best chance you have to stay safe.

During your arrest, you can remain silent, as is your right, Sykes said.

In some states, police are permitted to know your name if they ask, but they don't have the right to know where you're from or your citizenship status, he said.

You can also ask for a lawyer -- remember that number you held onto for legal support.

If you're booked into jail, call a lawyer immediately, Sykes said.

Police can't listen in on your call if you're phoning a lawyer, but they can listen in if you're calling a friend or family member, so be aware, he said.

10. What can I do if I feel law enforcement or other officials violated my rights?

You can sue for civil rights violations.

Some protesters file large class-action suits that are occasionally successful, and sometimes authorities can pay damages when they decide litigation isn't worth it, Zick said.

But qualified immunity can shield officers from civil liability if they didn't violate a clearly established law, he said.

Qualified immunity is a legal doctrine that protects police officers accused of interfering with constitutional rights from being liable unless they violated a clearly established and defined law.

The lines are blurred at protests of what police are allowed to do and what constitutes overreaching, so "clearly established" constitutional rights are difficult to determine, Zick said.

In this way, many police officers are protected by qualified immunity, Sykes said.

11. Can my workplace fire me if they find out I attended a protest?

That depends on the contract you made with your employer when you were hired, but yes, it's possible, Sykes said.

You have stronger constitutional protections for what you do outside of work, but depending on what you agreed on when you were hired, a company may be able to terminate your employment, he said.

Read more:
If you're planning to take part in protests, know your rights. Read this. - CNN

Thanks to spax for compiling and sharing this great list of resources including this weekends planned marches and protests.

From MPD:

On Saturday, June 13, 2020 and Sunday, June 14, 2020, multiple First Amendment demonstrations are scheduled to occur in the District of Columbia. In conjunction with these events, there will be street closures and restrictions that motorists should take into consideration:

The following streets will be posted as Emergency No Parking for the demonstrations beginning on Saturday, June 13, 2020 at 6:00 am and extending through Sunday, June 14, 2020 to 11:59 pm:

Constitution Avenue from Pennsylvania Avenue, NW to 17th Street, NWPennsylvania Avenue from 3rd Street, NW to 15th Street, NWIndependence Avenue from 3rd Street, NW to 14th Street, SWConnecticut Avenue from I Street, NW to L Street, NWVermont Avenue from I Street, NW to L Street, NWI Street from 14th Street, NW to 17th Street, NWH Street from 14th Street, NW to 17th Street, NWK Street from 14th Street, NW to 17th Street, NWNew York Avenue from 14th Street, NW to 15th Street, NW17th Street from Constitution Avenue, NW to L Street, NW

(both side of Farragut Square)

16th Street From H Street, NW to O Street, NW15th Street from Constitution Avenue, NW to L Street, NW

(both sides of McPherson Square)

14th Street from Independence Avenue, SW to K Street, NW12th Street from Constitution Avenue, NW to Pennsylvania Avenue, NW10th Street from Constitution Avenue, NW to Pennsylvania Avenue, NW9th Street from Constitution Avenue, NW to Pennsylvania Avenue, NW7th Street from Independence Avenue, SW to Pennsylvania Avenue, NW6th Street from Constitution Avenue, NW to Pennsylvania Avenue, NW4th Street from Independence Avenue, SW to Pennsylvania Avenue, NW3rd Street from Independence Avenue, SW to Pennsylvania Avenue, NW

On Saturday, June 13, 2020 at 6:00 am to 11:59 pm the following streets may see restrictions to vehicular traffic at intermittent times. On Sunday, June 14, 2020 beginning at 4:00 am to 11:59 pm, the following streets will be closed to vehicular traffic. If street closures are made in the following locations, vehicles will be allowed to enter the restricted area if they are on essential business or traveling to-and-from their residence.

Constitution Avenue from Pennsylvania Avenue, NW to 18th Street, NWPennsylvania Avenue from 3rd Street, NW to 15th Street, NWPennsylvania Avenue from 17th Street, NW to 18th Street, NWIndiana Avenue from 6th Street, NW to 7th Street, NWJefferson Drive, SW from 3rd Street to 14th Street, SWMadison Drive, NW from 3rd Street to 14th Street, NWC Street from 17th Street, NW to 19th Street, NWC Street from 3rd Street, NW to 6th Street, NWD Street from 3rd Street, NW to 8th Street, NWD Street from 17th Street, NW to 18th Street, NWE Street from 12th Street, NW to 18th Street, NWF Street from 12th Street, NW to 18th Street, NWG Street from 12th Street, NW to 18th Street, NWH Street from 12th Street, NW to 18th Street, NWI Street from New York Avenue, NW to 18th Street, NWK Street from 9th Street, NW to 18th Street, NWConnecticut Avenue from H Street, NW to L Street, NWVermont Avenue from H Street, NW to L Street, NWNew York Avenue from 9th Street, NW to 15th Street, NWNew York Avenue from 17th Street, NW to 18th Street, NW17th Street from Constitution Avenue, NW to L Street, NW16th Street From H Street, NW to O Street, NW15th Street from Independence Avenue, SW to L Street, NW14th Street from Independence Avenue, SW to L Street, NW13th Street from Pennsylvania Avenue, NW to E Street, NW11th Street from Constitution Avenue, NW to E Street, NW10th Street from Constitution Avenue, NW to E Street, NW7th Street from Independence Avenue, SW to E Street, NW6th Street from Constitution Avenue, NW to E Street, NW4th Street from Independence Avenue, SW to Pennsylvania Avenue, NW

See the original post here:
Street Closures for this weekend's "multiple First Amendment demonstrations" + a Great List of the Upcoming Protests & Events - PoPville

Blasting AG William Barr for deploying what they called a "secret paramilitary force," House Dems say their bill prevents the further erosion of trust in police.

WASHINGTON On Thursday, Virginia Rep. Don Beyer (D) joined other Democrats in the house in introducing the Law Enforcement Identification Act, which would require uniformed federal officers to wear plainly visible identification while policing First Amendment Assemblies.

The bill comes as a response to the use of unidentified Bureau of Prisons crisis management teams as part of federal security efforts in Washington, D.C., during the Justice for George Floyd protests last week. It would bring requirements for federal law enforcement in line with D.C. police, who are already required by District statute to wear enhanced identification while policing First Amendment demonstrations.

The legislation was introduced by a number of representatives from the DMV. Joining Beyer were D.C. Congresswoman Eleanor Holmes Norton, Virginia Congressman Gerry Connolly and Congresswoman Jennifer Wexton, and Maryland Congressmen Jamie Raskin and Anthony Brown, all Democrats. The bill is the House companion to an identical bill in the Senate introduced by Sen. Chris Murphy (D-CT) and Senate Minority Leader Chuck Schumer (D-NY).

It is unacceptable for federal officers policing constitutionally-protected peaceful protests in our nations capital to refuse to identify themselves, Beyer said Thursday. We do not have secret police in the United States of America. The lack of identification left city authorities, protesters, and residents in the dark about who these armed officers in their community last week were, who gives them orders, and what their use of force guidelines are.

Read the full text of the bill below:

WUSA9 reported extensively on the use of unmarked federal law enforcement during protests last week. The officers who wore no identification and had either blocked or removed insignia repeatedly refused to identify themselves to media and citizens, and would only say they were with the Department of Justice when asked. The Bureau of Prisons eventually acknowledged that the officers were members of their special operations resource and crisis management teams.

The BOP told CBS News in a statement that the officers werent wearing marked clothing because they were serving a broader mission.

The use of unmarked officers in the nations capital prompted more than 120 members of the House to send a letter to Attorney General William Barr who was overseeing the federal response to protests in D.C. demanding that he restore the identifying information to their uniforms.

Attorney General Barr deployed what can fairly be described as a secret paramilitary force against citizens protesting in Washington, D.C., Rep. Raskin said in a statement Thursday. This is a scandal. How can our constituents know whether individuals purporting to enforce the law are actually authorized to do so and by whom if theyre not wearing any identification?

Virginias Rep. Wexton called it an irresponsible an dangerous action that escalated an already tense situation, and said the use of anonymous enforcers to quell civil unrest is a tactic of autocratic leaders.

The unmarked officers also prompted a Twitter feud between Mayor Muriel Bowser and President Donald Trump after the mayor sent the White House a letter demanding it move the officers and other military personnel out of the city.

Bowser said the federal response to the protests was inflaming demonstrators and adding to the grievances of those who, by and large, are peacefully protesting for change.

On Sunday, the president ordered the roughly 5,000 National Guard troops brought to D.C. from around the country to officially withdraw, saying everything was under perfect control.

Read more:
Democrat bill would end use of unmarked federal officers to police First Amendment demonstrations - WUSA9.com

Heavily armed citizens showed up recently at protests in Wyoming, Pennsylvania, Minnesota, Montana, Coloradoand Idaho to allegedly protected peaceful protesters from antifa.

In Coeur dAlene, Idaho, groups of 25 to 50 armed men in combat gear spent successive nights patrolling the downtown area, following internet rumors that antifa agitators would be arriving from Seattle.

The FBI stated there is no evidence that any protests have been linked to antifa. Still, President Donald TrumpDonald John TrumpMelania Trump is 'behind-the-scenes' but 'unbelievably influential': book Police unions face lobbying fights at all levels of government Ernst challenger leads by three points in tight Iowa Senate race MORE tweeted: Domestic Terrorists have taken over Seattle, run by Radical Left Democrats, of course. LAW & ORDER!

In his June 1 Rose Garden address amid vowing to shield American citizens from professional anarchists, violent mobs, or arsonists, looters, criminals, rider rioters, Antifa the president promised to protect Second Amendment rights.

InJanuary,he tweeted, Your 2nd Amendment is under very serious attack in the Great Commonwealth of Virginia,days before a gun rights rally in Richmond. The gun-rights rally itself drew 22,000 peoplemany of them heavily armed and in combat gearto protest Democratic state legislators pledge to enact new gun control legislation.

In mid-April, after blue-state governors enacted quarantine measure, he alsoclaimed multiple timesthat these governors were trying to take peoples guns away. In an odd non-sequitur, the president seemed to conclude that lockdown restrictions were also tied to Second Amendment rights.

Less than two weeks later, armed anti-lockdown protesters descended on Michigans statehouse. In response, some state legislators worebulletproof vests, and the states legislative session ended early.

In each instance, armed protesters used the Second Amendment to undermine democracy and individual rights. Democratically elected bodies in Virginia and Michigan were effectively threatened if they choose to act on measures gun control and an extension of lockdown orders that had wide public support. When citizens descend on a state capital brandishing guns, they effectively end any commitment to democratic debate.

While gun control advocates point out that36,000Americans are killed by guns each year, it is also essential to consider how guns threaten First Amendment rights and the will of democratic majorities.

The idea that a right to bear arms is necessary to protect oneself from a tyrannical government implies that violence would, at some point, be justified.

The contrast between the anti-lockdown protests and the Black Lives Matter protests demonstrates the limits of the Second Amendment to check government tyranny.Mostly white, heavily armed, protesters were able to challengelargely popularpublic health measures by intimidating state officials.

However, it is difficult to imagine Black Lives Matter and other anti-police brutality protesters using the Second Amendment effectively. It stretches the bounds of credulity to think that heavily armed Black Lives Matter protests would be met with anything other than large-scale state-sanctioned violence.

The historical context of the Second Amendment also cannot be overlooked.

During debates regarding the ratification of the Constitution, some anti-federalists took particular notice ofArticle 1 Section 8of the Constitution. The offending passages give Congress the authority to call forth and train militias.

At the time, Southern slaveholdersworried that since the federal government was given power over the militias, Congress could eventually block southern states from using their militias to put down slave rebellions.

The full text of the Second Amendment states: A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. It is not an accident that James Madison, a slaveholder himself, mentions the need for states to have militias in the Second Amendment.

The great irony here is that the Second Amendment can be read a different way as protecting Americans from an overly militarized police force.

The use of the term militias in both Article 1 Section 8 and the Second Amendment is a reflection of the fact that the founders feared permanent professional standing armies would be a threat to liberty. The Second Amendment mentions militias because the framers intended military units made up of part-time citizen-soldiers to be the first line of defense.

The photos and video footage from around the country of a heavily militarized police force firing rubber bullets and tear gas into crowds of peaceful protesters certainly seems to justify the founders warnings to the dangers of standing armies.

The First Amendment protections of freedom of expression, freedom of assembly and freedom of the press, have proven to be the most effective tool for civil rights leaders past and present to demand justice and challenge instances of government oppression.

In contrast, the Second Amendment has historically been atool of the oppressors rather than the oppressed. It is time to let go of the myth that the Second Amendment is an effective tool for protecting individual liberties.

Katie Scofield has a Ph.D. in political science from Indiana University, with a focus on comparative constitutional law. She was awarded a Fulbright grant to study the Ecuadorian Constitution and its treatment of human rights and teaches government at Blinn College in Texas.

See the rest here:
Myth: Second Amendment protects individual liberties | TheHill - The Hill