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WASHINGTON The Knight First Amendment Institute at Columbia University today sent a letter to Attorney General William P. Barr demanding that he direct officers who have been deployed to police or monitor the ongoing protests to wear badges or other markers displaying their agency affiliations, their identification numbers, and their names. Some of the heavily armed officers who have been deployed in Washington, DC, have not been wearing such markers. The Institutes letter states that the No-Badge practices chill the exercise of First Amendment rights and raise a host of other concerns.

The No-Badge practices seem designed to instill fear and to intimidate people from exercising rights protected by the First Amendment, said Jameel Jaffer, Executive Director at the Knight First Amendment Institute. They also conceal information that the public has a right to know. There is no legitimate justification for these practices, and they should have no place in any free society.

According to the Knight Institutes letter, the practices raise an array of serious concerns, including contributing to public mistrust of law enforcement and the government more broadly. The letter states that the practices will chill private citizens from participating in protests, and also undermine the legitimacy of whatever demands the armed personnel make of the citizens with whom they interact. The practices will also frustrate accountability, the letter states, because protesters and members of the public cannot know whom to hold responsible when these personnel engage in conduct that is abusive or unlawful.

These practices are bad policy, and they also raise grave constitutional concerns, said Leena Charlton, a legal fellow at the Knight Institute. The ability to identify members of law enforcement plays an essential role in ensuring government accountability, stemming police brutality, and vindicating civil rights.

The letter asks that, by June 10, the Attorney General respond and explain the steps he has taken to ensure that all personnel under his supervision or control deployed to police or monitor public protests display identifying information.

Read todays letterhere.

In response to police killings of Black men, women, and children and to the excessive use of force against protesters and journalists covering the demonstrations, the Knight First Amendment Institute staff also issued a statement today that calls for reforms to strengthen public access to information about police misconduct; protect those who expose that misconduct; and guarantee the rights of those who are currently protesting.

Read todays statementhere.

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Knight Institute Demands Attorney General Direct Armed Officers Deployed in DC to Display Identities and Agency Affiliations - YubaNet

Hours after the sometimes chaotic protesting died down, two soldiers with the D.C. National Guard kept watch at the mostly calm corner of Pennsylvania Avenue and 7th Street N.W.

It was about 11:30 p.m. at the midpoint between the White House and the Capitol building and Staff Sgt. Jeremy French and Pfc. Rich Lynch were stationed to make sure no vehicles headed northwest on Pennsylvania Ave.

They were part of the largest domestic mobilization of Guard troops in the nations history, with more than 17,000 activated for civil unrest duties and about 45,000 more to help with the response to the coronavirus pandemic.

The D.C. troops were armed only with defensive weapons, Guard officials said. Rubber bullets, shields and batons. They were not assigned to arrest or detain anyone, and the use of proportional force was only allowed if their lives were endangered.

It kind of makes sense to me that they would chose Washington, D.C., to come and be heard, French said of the thousands of people who flooded into town to protest the death of George Floyd, a black man who prosecutors say was murdered by a Minneapolis police officer who had his knee on a restrained Floyds throat.

Thats because right there in the background is the U.S. Capitol, said French, nodding his head toward the gleaming domed structure four blocks to the southeast. Those are the people who make the laws. So if you had something you wanted to be able to have your voice heard about, to make an impact and maybe change, that would be the place to do it. So I think this is the appropriate place to be heard.

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French and Lynch were pulling duty several hours after President Donald Trump announced his intentions to call in active duty troops to respond to the growing unrest that is sweeping the nation, resulting in several deaths, massive destruction and hundreds of thousands of people expressing their outrage over racial injustice.

French avoided politics, saying his perspective is just from his position at the intersection of 7th and Pennsylvania Avenue. But he said it is local law enforcement, not the military, that is best suited to coping with the looting, burning and violence that has erupted along with peaceful protests.

Weve seen some protesters come up and down, back and forth, but it seems like its been pretty peaceful, said French, 49, who previously served with the Marines in both the first Gulf War and Afghanistan and later as a contractor working in Afghanistan.

Im definitely not an expert on civil disturbances, he said, so it looks to me like the D.C. Metro Police are doing a pretty good job of controlling the situation and with us in general support, maybe this is enough. Im not really sure if you brought more military in that they would be able to do anything any different.

The D.C. Metro Police are specially trained for this mission, he said.

As he spoke, several police cars speed north, lights flashing, down 7th Avenue toward some unknown event.

Here in the nations capital, protest is not a new thing, said French. Neither are large activities like Fourth of July celebrations, parades, things of that nature. So I believe protest activity is something better left to the experts and I would say the experts are definitely D.C. Metro Police.

The military is trained in crowd-control techniques and tactics, however that is with more of a DoD type of flair in a deployed environment, said French. But this is the U.S. It is a little bit different here.

Protecting Rights

Both French and Lynch said they felt their mission was essential to upholding the constitutional rights of free assembly.

Lynch, the private first class, spent half of his 20 years as a resident of the District.

Im just doing my job, he said. I know a lot about this area and how these people feel about the situations going on, but I am just doing what I am supposed to.

And thats making sure motorists dont drive toward the White House, or interfere with those who are protesting. Helping to block the street was a tan light medium tactical vehicle from the D.C. National Guard motor pool, parked in the middle of Pennsylvania Avenue.

The mission is to separate the good protesters and then the rioters and looters, said Lynch. You kind of have to draw the line between which is which.

How do you do that?

Just see the actions they take, they speak louder than words, he said. If they are throwing bricks at you, they are not there to be peaceful. If they are just holding up signs and not causing any violence, why should we use violence, you know?"

Lynch said that hes had positive interactions with most of those who have taken to the streets.

People are now starting to associate our uniforms with police uniforms and thats the thing: We are not police, he said, smiling. We are not here to arrest you for jaywalking or smoking whatever you want to smoke. We are here to just assist.

French said that Washington is near and dear to my heart.

It was my first duty station in the Marine Corps, he said. I was stationed at Marine Barracks 8th and I back in 1989 so thats 30 years ago. ...my civilian job was in Washington, D.C.

As a D.C. Guardsman, French said we are out here in general support of the D.C. Metro Police to help ensure public safety for everybody, provide the opportunity for protesters to assemble peacefully and try to reduce the amount of the unlawful activity that is going on after hours in certain areas being done by certain people. So I think it is a pretty important job for all of the Americans who were out here, to give people the opportunity to express their First Amendment rights but within the legal boundary of the rule of law.

For French, Monday was his first night on the streets during the protests.

Ive had a very positive experience, he said. Been treated well by passers by and the like. Ive had several conversations with folks, so I have been treated really well.

Esper and Milley visit troops after church tumult

While it was calm in Washington near midnight Monday, several hours earlier the scene near the White House at St. Johns Episcopal Church at 15th and H streets NW was bedlam.

Those protesting were hit with tear gas as Trump and a coterie of officials, including Defense Secretary Mark Esper and Joint Chiefs Chairman Army Gen. Mark Milley made their way to the church.

Law enforcement officers were aggressively forcing the protesters back, firing tear gas and deploying flash bangs into the crowd to disperse them from the park for seemingly no reason. It was a jarring scene as police in the nations capital forcefully cleared young men and women gathered legally in a public park on a sunny evening, all of it on live television.

With smoke still wafting and isolated tussles continuing in the crowd, Trump emerged in the Rose Garden for a dramatic split-screen of his own creation.

I am your president of law and order and an ally of all peaceful protesters," he declared, before demanding that governors across the nation deploy the National Guard in sufficient numbers that we dominate the streets. And Trump warned that, if the governors refused, he would deploy the United States military and quickly solve the problem for them.

As an additional show of force, Trump announced he was deploying even more of the military to Washington, giving it the feel of an armed, locked-down city after days of violent clashes, arson and looting.

As we speak I am dispatching thousands and thousands of heavily armed soldiers," he said, as explosions rang out in the background. We are putting everybody on warning.

Hours later, Esper and Milley, along with Army Chief of Staff, Gen. James McConville and Army Secretary Ryan McCarthy arrived at 15th and K streets NW to talk with D.C. Guardsmen.

Thanks for being out here, said Esper, his arms crossed, to one of the soldiers. Thanks for your service. You want to go on active duty?

Esper did not take questions from a small group of reporters on the scene. But Milley spoke for about half a minute.

Those gathered, he said, can protest, but to protest peacefully.

The Pentagons top officer said his message on this night was to allow freedom to assemble, freedom of speech, thats perfectly fine. We support that. We took an oath of allegiance to the Constitution of the United States of America to do that. And to protect everyones rights. And thats what we do. Weve got the D.C. National Guard out here and I was just checking to see how well they are doing, thats all.

Just before midnight, the young PFC who spent half his life as a resident of the District reflected on an historic turn of events in a city that has been burned and looted over days of protest both peaceful and violent.

I walked up and down these streets as a civilian before I joined the Guard, said Pfc. Rich Lynch. And to see the way it looks now, its crazy.

This story contains information from the Associated Press

Read more here:
Guard troops in DC say they want to 'give people the opportunity to express their First Amendment rights' - Military Times

Over the past week, millions of protestersacross the country spoke out against racial injustice, police brutality and the death of George Floyd.

As cities enacted curfews, and reports of aggressive police tacticsspread, many have raised concerns about what rights protesters have.

Organizations including the ACLUand the Legal Aid Society have emphasized the importance of protesters knowing their legal rights.

Another concern that many protesters share is whether their actions could impact their livelihoods, with some wondering, "Can I be fired for protesting?"

While it's unclear whether any protesters have been fired, a common misconception is that the First Amendmentprotects protesters' jobs, says Jonathan Bell, a New York-based labor attorney.

"A lot of people say, 'Well, what about the First Amendment? Doesn't it protect our right to protest?' The answer is yes. The First Amendment does protect an individual's right to protest, but it doesn't afford any protection for employment," he says. "Freedom of speech does not mean that your employer can't terminate you for any reason, especially if you're an employee at will."

CNBC Make It talked with protesters in New York and Washington, including several who spoke on condition of anonymity, saying they feared their participation in demonstrations could lead to negative consequences in their careers.

"Yesterday, I lied to my boss to go to a protest. It didn't occur to me to tell them what I was doing," a black woman who works for a start-up in New York City told Make It. "I have a white friend who emailed her boss explaining she was going to a protest and got approved for time off. I'm worried about the message it would send about me being 'radical' if I asked, whereas I feel like my white friend was able to ask because it signals to her boss that she's a 'good person.'"

One 22-year-old protester based in Washington, who works as anaccount management associate, said he was explicitly told protesting could "result in termination,"but ultimately he felt standing up for what he believed in was most important.

A 30-year-old New York-based protester who works for a nonprofit and uses they/them pronounsalso worried that protesting could result in getting fired but feels strongly it's the right thing to do.

"There are many reasons I'm still out protesting. The violence has been so intense and deserves witness and response, and I feel such grief for my fallen trans siblings," they said, referencing Tony McDade, a black trans man who was shot and killed by a police officer in Tallahassee, Florida, last week. Police said that while investigating a fatal stabbing, McDade was in the area, matched the description of the suspect and was shot after pointing a gun at an officer.

"There are so many young kids out there!" the protester said. "The cops are going after them with greater force. They want to intimidate us to staying home."

"And ultimately, I'll be fine if they fire me. How many millions of people are without work right now?"

Others said they've felt supported by their employers. In one instance, a 29-year-old New York protester who works as a director of brand communications said her manager let her skip a meeting in order to go to a demonstration.

"My boss asked if I wanted to join a call, and I knew I had the space to tell her I can't because I was going to a protest. Her response was, 'That is more important,'" said the protester. "Our black friends and family need us more than ever. They are exhausted, we need to show up for them in every way possible."

Human resources and legal experts tell CNBC Make It there are several factors to consider when determining if a person can be fired for attending a protest. Here are a few of them:

A participant holding a Defund The Police sign at the protest. Thousands of protesters filled the streets of Brooklyn in a massive march to demand justice for George Floyd, killed by Officer Derek Chauvin and to make a loud call for the defunding of the police force.

Erik McGregor/LightRocket via Getty Images

"At-will" employees are not protected by a contract or a bargaining agreement, so they can be fired without cause.

According to the National Conference of State Legislators, "The U.S. is one of a handful of countries where employment is predominantly at-will. Most countries around the world allow employers to dismiss employees only for cause."

"If you're an employee at will, you can be fired for any reason at all," says Bell. "You can be fired because someone doesn't like the color of your shoes, as long as it's not discrimination based on race, age, religion, gender, disability or a protected class."

He says the vast majority of working Americans are at-will employees. Doctors with contracts with specific hospitals are among the minority of workers who are not considered at-will. If you are not an at-will employee, you should thoroughly read your contract, he says.

Another variable is where your live.

"It really depends upon what state you're in," says Bell. "For example, states that do have laws or provisions regulating termination are states like California, Colorado and New York, where basically the law is that if you're engaging in a lawful activity during nonwork hours, then employers can't terminate you."

Amber Clayton, director of the Society for Human Resource Management's Knowledge Center, says such protections are often referred to as "off-duty conduct laws" or "lifestyle discrimination laws."

"Those are the kinds of laws that actually would protect employees from being terminated for peaceful protesting, for example," she explains.

Here is SHRM's guide to how these protections vary from state to state.

Even in states like New York that have such laws, workers need to "look out for minor violations," says Bell, noting that while protesting is a legal activity, workers are sometimes fired if they have been arrested for unlawful activity.

According to early estimates from The Associated Press, police arrested over 10,000 protesters in the past week for offenses such as blocking highways and breaking curfew.

"If protesters are arrested for what is deemed 'unlawful activity,' then employers may be able to take action," says Clayton. "But it's important to remember that states have varying laws with regards to arrest and conviction records and also to keep in mind that arrests don't necessarily mean that someone is convicted."

Here is a resourcethat protesters can reference that compiles state employment laws on use of arrests and convictions.

Ultimately, there is no federal legislation that protects protesters from being fired.

Without federal protections, Clayton says workers also need to pay close attention to employers' policies to make sure they have all of the information they need.

"For example, some employers may have policies where employees can't wear uniforms out in public and show that they're representative of the organization while they're doing any kind of off-duty work," she says.

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As people protest across the U.S., some wonder: Could you be fired for protesting? - CNBC

After weeks of tweeting misinformation about mail-in voting, on Tuesday decided to slap a small disclaimer on some of President Trumps posts on the subject. Get the facts about mail-in ballots, reads a link to a string of reputable reports about proxy voting, which is practiced in both Democratic and Republican states, and has not been proven to lead to widespread fraud, contrary to what the president has claimed repeatedly.

Trumps response was to threaten to cancel the First Amendment.

Trump, writing voluntarily on a corporations publishing platform, tweeted Tuesday night that the social media giant is interfering in the 2020 Presidential Election and completely stifling FREE SPEECH. After what we can only imagine was a sleepless night spent on the phone with top-flight constitutional scholars, Trump came up with the pERfEcT defense of free speech: Threatening to use the federal government to regulate or shut down social media outlets if they dont do what he wants.

Republicans feel that Social Media Platforms totally silence conservatives voices, the president wrote. We will strongly regulate, or close them down, before we can ever allow this to happen.

Twitter has now shown that everything we have been saying about them (and their other compatriots) is correct, Trump added Wednesday morning. Big action to follow!

Of course, Trump couldnt care less about FREE SPEECH. Adding a fact-check option to some of Trumps tweets is a form of exercising the right to free speech. (So would, for that matter, Twitter declining to help Trump get his message out to 80.3 million followers.) Trump moving to regulate Twitters ability to fact check him or, worse, to close them down over it would constitute a blatant infringement of the First Amendment that not even the most MAGA-friendly court in America could rationalize as constitutional.

Trump may well be making empty threats but those threats alone will probably suffice. Simply floating the idea of impropriety will get his followers riled up and put pressure on social media platforms to cow to his demands, or risk being perceived as biased. It has worked before. Republicans feeling like Twitter is silencing conservative voices, as Trump wrote on Wednesday, is largely the result of his own previous complaints and threats against the platform. Theres no actual substance to the grievances. Like his entire presidency, its a self-perpetuating carousel of bullshit. Every time it swings back around, it seems a little more legitimate because people remember hearing about it on the first pass, or the second, or the third.

Trump is trying to pull off the same con with his Twitter campaign to get Florida law enforcement (or Concast) to open up a Cold Case against MSNBC host Joe Scarborough. Since early this month, Trump has been tweeting incessantly about a debunked conspiracy theory that, when Scarborough was a member of the House of Representatives, he murdered one of his staffers, Lori Klausutis. In reality, Klausutis suffered from an undiagnosed heart condition, fell in the office, and hit her head on a desk.

Last week, Klausutis husband, Dr. Timothy J. Klausutis, wrote a letter asking Twitter CEO Jack Dorsey to remove the posts. The President of the United States has taken something that does not belong to him the memory of my dead wife and perverted it for perceived political gain, Klausutis wrote, The New York Times reported. Many agreed with Klausutis, and the letter reignited calls for the social media giant to hold the president to the same standards as the rest of its user base.

Twitter would be well within its rights to do so. The platforms terms of service prohibit targeted harassment and hateful conduct. Trump is clearly in violation of both, and if he is going to choose to post on Twitter, he is subjecting himself to the platforms discretion over how to enforce its rules. But Twitter has refused to take action throughout his presidency, and refused to do so again in response to Klausutis.

We are deeply sorry about the pain these statements, and the attention they are drawing, are causing the family, a Twitter representative told CNN. Weve been working to expand existing product features and policies so we can more effectively address things like this going forward, and we hope to have those changes in place shortly.

The same day, the fact-check option appeared on Trumps tweets about mail-in voting. Its a welcome change, but also a far less drastic step than deleting his posts about Klausutis, which continued Wednesday morning. Psycho Joe Scarborough is rattled, not only by his bad ratings but all of the things and facts that are coming out on the internet about opening a Cold Case, the president wrote. He knows what is happening!

In other words, the carousel is still spinning.

More here:
Trump Threatens to Shred First Amendment to Defend Free Speech - Rolling Stone

In a recent decision from the Southern District of New York, Judge George B. Daniels held that the strong First Amendment interests in protecting free artistic expression warranted summary judgment that Activision Blizzards use of Humvee vehicle models in the blockbuster Call of Duty videogames was not a violation of the Lanham Act. Because the inclusion of Humvees represented genuine artistic expressionspecifically, the creation of a more realistic depiction of the armed forcesand was not in service of misappropriation or otherwise misleading as to the source of the game, the defendants were entitled to the dismissal of all of the plaintiffs claims.

Background

In AM General LLC v. Activision Blizzard, Inc. et al. (No. 17-cv-8644), Plaintiff AM General (AMG) had been the contract supplier of Humvees to the armed forces since the early 1980s, during which time they had seen ubiquitous use and deployment among U.S. military land forces. Since the 1990s, AMG had granted a few licenses to use the Humvee trademark in connection with products and services including at least some toys and at least four video games, although its primary business line remained the manufacture and sale of physical automobiles.

Defendant Activision Blizzard published the extremely popular Call of Duty videogame franchise, a series of military-styled first person shooters. In nine of these games, Humvees were depicted for various durations, at times requiring the player to interact with or ride in a Humvee, and with Humvees shown in promotional trailers and strategy guides. Following the 2016 release of Call of Duty: Modern Warfare Remastered, AMG brought suit in November of 2017 for trademark and trade dress infringement under the Lanham Act and various substantially related claims under the Lanham Act and parallel state laws.

The Case

At summary judgment, Activision Blizzard argued that the strong First Amendment interest in protecting free expression warranted dismissal of AMGs claims. The Court noted that there was a long line of precedent, beginning with Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), that weighed strongly in favor of protecting works of artistic expression against Lanham Act claims. (slip op. at 7). Rogers generally precluded the application of the Lanham Act to works of artistic expression where the use of the trademark has any artistic relevance to the underlying work whatsoeverso long as the artistically relevant use of the trademark did not explicitly mislead[] as to the source or the content of the work. (Id.)

Examining past cases implicating Rogers, the court held that a Lanham Act violation would not be supported against countervailing First Amendment concerns by the mere existence of a likelihood of confusion, but rather only in circumstances where the evidence for a likelihood of confusion was compelling, such as where undertaken for the purposes of misappropriation. The court further observed that the requirement that an artistic use of a mark have artistic relevance was not the same thing as being artistically required or obligatorythe use had to be in artistic good faith but there was no but for requirement that the use be indispensable.

The court found that Activision Blizzards interest in presenting military verisimilitude easily met the low bar for artistic relevance. The Court further found that, in view of the Polaroid factors [Polaroid v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961)], Activision Blizzards use of Humvees was not explicitly misleading. Despite some survey evidence showing potential confusion as to whether AMG had approved the use of Humvees in the game, there was ultimately little to suggest that Activision Blizzards use was of an appropriative rather than artistic character. In particular, the fact that AMG was a manufacturer of automobiles while Activision Blizzard produced videogames weighed heavily against any compelling finding of confusion. The Court was unmoved by AMGs argument that its licensing activities created an overlap in the market segments for Activision Blizzard and AMG, due to the sporadic and marginal nature of such licensing relative to AMGs primary business of making and selling automobiles. (slip op. at 14).

Summing up its analysis, the Court held that enhanc[ing] the games realism was a sufficient rationale to establish that the use of Humvees was an integral element of the games artistic expression under the Rogers line of cases. (slip op. at 19). That the art in question was commercially sold did not negate the protection afforded it under the First Amendment. Activision Blizzard was thus entitled to summary judgment against all of AMGs claims.

Takeaways from AMG v. Activision Blizzard

AMG v. Activision Blizzard is broadly helpful to both amateur and commercial producers of art who wish to include potentially trademarked material as part of a broader commitment to realism. Where a marks presence, even if not necessarily required, is so entwined with a realistic portrayal of artistic subject matter (as with Humvees and the military) that its use can be readily characterized as in good faith, AMG suggests that the use of the mark would generally be protected.

How far the holding of AMG extends, however, is not entirely clear with respect to marks for which licensing represents a more common and widespread business model than the sporadic and marginal business lines of the plaintiff in AMG. The AMG court put significant weight on the fact that there was no evidence of significant market overlap or direct competition between the plaintiffs automobiles and Activision Blizzards games, and thus no compelling case for consumer confusion in the context of such wildly different goods. The issue would, presumably, be more difficult to resolve in those instances in which a plaintiffs mark had a longer or more substantial history of being licensed in the same field in which an accused infringer sought to establish a protected use of that mark.

[View source.]

Read more from the original source:
First Amendment May Protect Use of Trademarks As Artistic Expression - JD Supra