Posts Tagged ‘free speech’

“If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”— Supreme Court Justice Oliver Wendell Holmes

There was a time in this country, back when the British were running things, that if you spoke your mind and it ticked off the wrong people, you’d soon find yourself in jail for offending the king.

Reacting to this injustice, when it was time to write the Constitution, America’s founders argued for a Bill of Rights, of which the First Amendment protects the right to free speech. James Madison, the father of the Constitution, was very clear about the fact that he wrote the First Amendment to protect the minority against the majority.

What Madison meant by minority is “offensive speech.”

Unfortunately, we don’t honor that principle as much as we should today. In fact, we seem to be witnessing a politically correct philosophy at play, one shared by both the extreme left and the extreme right, which aims to stifle all expression that doesn’t fit within their parameters of what they consider to be “acceptable” speech.

There are all kinds of labels put on such speech—it’s been called politically incorrect speech, hate speech, offensive speech, and so on—but really, the message being conveyed is that you don’t have a right to express yourself if certain people or groups don’t like or agree with what you are saying.

Hence, we have seen the caging of free speech in recent years, through the use of so-called “free speech zones” on college campuses and at political events, the requirement of speech permits in parks and community gatherings, and the policing of online forums.

Clearly, this elitist, monolithic mindset is at odds with everything America is supposed to stand for.

Indeed, we should be encouraging people to debate issues and air their views. Instead, by muzzling free speech, we are contributing to a growing underclass of Americans—many of whom have been labeled racists, rednecks and religious bigots—who are being told that they can’t take part in American public life unless they “fit in.”

Remember, the First Amendment acts as a steam valve. It allows people to speak their minds, air their grievances and contribute to a larger dialogue that hopefully results in a more just world. When there is no steam valve to release the pressure, frustration builds, anger grows and people become more volatile and desperate to force a conversation.

The attempt to stifle certain forms of speech is where we go wrong.

In fact, the U.S. Supreme Court has held that it is “a bedrock principle underlying the First Amendment…that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.” For example, it is not a question of whether the Confederate flag represents racism but whether banning it leads to even greater problems, namely, the loss of freedom in general.

Along with the constitutional right to peacefully (and that means non-violently) assemble, the right to free speech allows us to challenge the government through protests and demonstrations and to attempt to change the world around us—for the better or the worse—through protests and counterprotests.

As always, knowledge is key.

The following Constitutional Q&A, available in more detail at The Rutherford Institute (www.rutherford.org), is a good starting point.

Q:        WHAT LAWS GIVE ME THE RIGHT TO PROTEST?

A:         The First Amendment prohibits the government from “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Protesting is an exercise of these constitutional rights because it involves speaking out, by individual people or those assembled in groups, about matters of public interest and concern.

Q:        WHERE CAN I ENGAGE IN PROTEST ACTIVITY?

A:         The right to protest generally extends to places that are owned and controlled by the government, although not all government-owned property is available for exercising speech and assembly rights. However, beyond public or government property, a person cannot claim a First Amendment right to protest and demonstrate on property that is privately owned by someone else. This also applies to private property that is generally open to the public, such as a shopping mall or shopping center, although these areas sometimes allow demonstrations and other free speech activity with permission from the owner. You are also entitled to engage in protest activities on land you own.  The Supreme Court has ruled that the government may not forbid homeowners from posting signs on their property speaking out on a political or social issue.

Q:        WHAT ARE MY RIGHTS TO PROTEST IN A TRADITIONAL PUBLIC FORUM?

A:         Places historically associated with the free exercise of expressive activities, such as streets, sidewalks and parks, are traditional public forums and the government’s power to limit speech and assembly in those places is very limited. The government may not impose an absolute ban on expression and assembly in traditional public forums except in circumstances where it is essential to serve a compelling government interest.  However, expression and assembly in traditional public forums may be limited by reasonable time, place and manner regulations. Examples of reasonable regulations include restrictions on the volume of sound produced by the activity or a prohibition on impeding vehicle and pedestrian traffic.  To be a valid time, place and manner regulation, the restriction must not have the effect of restricting speech based on its content and it must not be broader than needed to serve the interest of the government.

Q:        CAN I PICKET AND/OR DISTRIBUTE LEAFLETS AND OTHER TYPES OF LITERATURE ON PUBLIC SIDEWALKS?

A:         Yes, a sidewalk is considered a traditional public forum where you can engage in expressive activities, such a passing out literature or speaking out on a matter of public concern. In exercising that right, you must not block pedestrians or the entrances to buildings. You may not physically or maliciously detain someone in order to give them a leaflet, but you may approach them and offer it to them.

Q:        CAN MY FREE SPEECH BE RESTRICTED BECAUSE OF WHAT I SAY, EVEN IF IT IS CONTROVERSIAL?

A:         No, the First Amendment protects speech even if most people would find it offensive, hurtful or hateful. Speech generally cannot be banned based upon its content or viewpoint because it is not up to the government to determine what can and cannot be said. A bedrock principle of the First Amendment is that the government may not prohibit expression of an idea because society finds it offensive or disagreeable. Also, protest speech also cannot be banned because of a fear that others may react violently to the speech.  Demonstrators cannot be punished or forbidden from speaking because they might offend a hostile mob. The Supreme Court has held that a “heckler’s veto” has no place in First Amendment law.

Q:        HOW DO THESE RIGHTS APPLY TO PUBLIC PLACES I TYPICALLY VISIT?

A:         Your rights to speak out and protest in particular public places will depend on the use and purpose of the place involved.  For example, the lobbies and offices of public buildings that are used by the government are generally not open for expressive activities because the purpose of these buildings is to carry out public business. Protesting would interfere with that purpose.  Ironically, the meetings of a governmental body, such as a city council or town board, are not considered public forums open for protest activities because the purpose of the meeting is generally to address public business that is on the agenda.  However, some government councils and boards set aside a time at the meeting when the public can voice their complaints.

The grounds of public colleges and universities are generally considered available for assembly and protest by students and other members of the institution’s community.  However, those who are not students, faculty or staff of the institution may be denied access to the campus for speech and protest activities under rules issued by the school.

Public elementary and secondary school grounds also are not considered places where persons can engage in assembly and protest.  However, students at these schools do not lose their right to free speech when they enter the school. The First Amendment protects the right of students to engage in expressive acts of protest, such as wearing armbands to demonstrate opposition to a war, that are not disruptive to the school environment.

Q:        DO I NEED A PERMIT IN ORDER TO CONDUCT A PROTEST?

A:         As a general rule, no. A person is not required to obtain the consent or permission of the government before engaging in activities that are protected by the First Amendment.  One of the main reasons for that constitutional provision was to forbid any requirement that citizens obtain a license in order to speak out.  The government cannot require that individuals or small groups obtain a permit in order to speak or protest in a public forum.

However, if persons or organizations want to hold larger rallies and demonstrations, they may be required by local laws to obtain a permit.  The Supreme Court has recognized that the government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a parade or rally.  Government officials cannot simply prohibit a public assembly according to their discretion, but the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met. Such time, place and manner restrictions can take the form of requirements to obtain a permit for an assembly.

Whether an assembly or demonstration requires a permit depends on the laws of the locality.  A permit certainly is required for any parade because it would involve the use of the streets and interfere with vehicle traffic. A permit to hold an event in other public places typically is required if the gathering involves more than 50 persons or the use of amplification.

Q:        DO COUNTER-DEMONSTRATORS HAVE FREE SPEECH RIGHTS?

A:         Yes, they do. Just because counter-demonstrators oppose you and the viewpoint of your demonstration does not mean they have any less right to speak out and demonstrate. However, the same rules apply to counter-demonstrators as apply to the original assembly. The group cannot be violent and must assemble and protest in an appropriate place and manner.

Q:        WHAT CAN’T I DO IN EXERCISING MY RIGHTS TO PROTEST?

A:         The Supreme Court of the United States has held that the First Amendment protects the right to conduct a peaceful public assembly. The First Amendment does not provide the right to conduct a gathering at which there is a clear and present danger of riot, disorder, interference with traffic on public streets or other immediate threat to public safety. Laws that prohibit people from assembling and using force or violence to accomplish unlawful purposes are permissible under the First Amendment.

Q:       AM I ALLOWED TO CARRY A WEAPON OR FIREARM AT A DEMONSTRATION OR PROTEST?

A:         Your right to have a weapon with you when you protest largely depends on what is allowed by state law and is unlikely to be protected by the First Amendment’s guarantee to freedom of speech. Not all conduct can be considered “speech” protected by the First Amendment even if the person engaging in the conduct intends to express an idea. Most courts have held that the act of openly carrying a weapon or firearm is not expression protected by the First Amendment.

The right to possess a firearm is protected by the Second Amendment, and all states allow carrying a concealed weapon in public, although most require a permit to do so. Some states allow persons to openly carry firearms in public. However, it is not yet settled whether the Second Amendment guarantees the right to possess a firearm in public. Thus, the right to carry a firearm at a demonstration or protest is a matter that depends on what is allowed under state law. Carrying other weapons, such as stun guns, which are not firearms also is subject to restrictions imposed by state lawPossession of weapons also may be prohibited in certain places where demonstrations might take place, such as a national park.

Even if possession of weapons is allowed, their presence at demonstrations and rallies can be intimidating and provocative and does not help in achieving a civil and peaceful discourse on issues of public interest and concern. Demonstrations often relate to issues raising strong feelings among competing groups, and the presence of counter-demonstrators makes conflict likely.  In these situations, where the purpose of the gathering is to engage in speech activities, firearms and other weapons are threatening, result in the suppression of speech and are contrary to the purpose of the First Amendment to allow all voices to be heard on matters of public importance.

Q:        WHAT CAN’T THE POLICE DO IN RESPONDING TO PROTESTERS?

A:         In recent history, challenges to the right to protest have come in many forms. In some cases, police have cracked down on demonstrations by declaring them “unlawful assemblies” or through mass arrests, illegal use of force or curfews. Elsewhere, expression is limited by corralling protesters into so-called “free-speech zones.” New surveillance technologies are increasingly turned on innocent people, collecting information on their activities by virtue of their association with or proximity to a given protest. Even without active obstruction of the right to protest, police-inspired intimidation and fear can chill expressive activity and result in self-censorship. All of these things violate the First Amendment and are things the police cannot do to censor free speech. Unless the assembly is violent or violence is clearly imminent, the police have limited authority under the law to shut down protesters.

Clearly, as evidenced by the recent tensions in Charlottesville, Va., we’re at a crossroads concerning the constitutional right to free speech.

As Benjamin Franklin warned, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

It must be emphasized that it was for the sake of preserving individuality and independence that James Madison, the author of the Bill of Rights, fought for a First Amendment that protected the “minority” against the majority, ensuring that even in the face of overwhelming pressure, a minority of one—even one who espouses distasteful viewpoints—would still have the right to speak freely, pray freely, assemble freely, challenge the government freely, and broadcast his views in the press freely.

This freedom for those in the unpopular minority constitutes the ultimate tolerance in a free society. Conversely, as I make clear in my book Battlefield America: The War on the American Peoplewhen we fail to abide by Madison’s dictates about greater tolerance for all viewpoints, no matter how distasteful, the end result is always the same: an indoctrinated, infantilized citizenry that marches in lockstep with the governmental regime.

Some of this past century’s greatest dystopian literature shows what happens when the populace is transformed into mindless automatons. For instance, in George Orwell’s 1984, Big Brother does away with all undesirable and unnecessary words and meanings, even going so far as to routinely rewrite history and punish “thoughtcrimes.”

Where we stand now is at the juncture of OldSpeak (where words have meanings, and ideas can be dangerous) and Newspeak (where only that which is “safe” and “accepted” by the majority is permitted). The power elite has made their intentions clear: they will pursue and prosecute any and all words, thoughts and expressions that challenge their authority.

This is the final link in the police state chain.

If ever there were a time for us to stand up for the right to speak freely, even if it’s freedom for speech we hate, the time is now.

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ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at http://www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

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“What are the defenders of free speech to do? The sad fact is that this fundamental freedom is on its heels across America. Politicians of both parties want to use the power of government to silence their foes. Some in the university community seek to drive it from their campuses. And an entire generation of Americans is being taught that free speech should be curtailed as soon as it makes someone else feel uncomfortable. On the current trajectory, our nation’s dynamic marketplace of ideas will soon be replaced by either disengaged intellectual silos or even a stagnant ideological conformity. Few things would be so disastrous for our nation and the well-being of our citizenry.”—William Ruger, “Free Speech Is Central to Our Dignity as Humans

As a nation, we have a tendency to sentimentalize cultural icons in death in a way that renders them non-threatening, antiseptic and easily digested by a society with an acute intolerance for anything controversial, politically incorrect or marred by imperfection.

This revisionist history—a silent censorship of sorts—has proven to be a far more effective means of neutralizing radicals such as Martin Luther King Jr. than anything the NSA, CIA or FBI could dream up.

In life, King called for Americans to rise up against a government that was not only treating blacks unfairly but was also killing innocent civilians, impoverishing millions, and prioritizing the profits of war over human rights and dignity. This was a man who went to jail over racial segregation laws, encouraged young children to face down police dogs and water hoses, and who urged people to turn their anger loose on the government through civil disobedience. King actually insisted that people have a moral responsibility to disobey unjust laws.

In death, however, King has been reduced to a face on a national monument and a national holiday, neither of which even hint at the true nature of the man: fiery, passionate, single-minded in his pursuit of justice, unwilling to remain silent in the face of wrongdoing, and unafraid of offending those who might disagree with him.

A contemporary of King’s, heavy-weight championship boxer Muhammad Ali followed a different path as a social activist and “breaker of boundaries.” Like King, Ali didn’t pull any punches when it came to saying what he believed and acting on it. Yet already, in the wake of Ali’s passing, we’re being treated to a sentimentalized version of the heavy-weight boxer.

In life, Ali was fast-talking, fast-moving and as politically incorrect as they come. He became an early convert to the Nation of Islam, a black separatist religious movement whose membership at one time included Malcolm X and Louis Farrakhan. He denounced his “slave name” (Cassius Marcellus Clay) and refused to be the “white man’s Negro.”

He was stripped of his boxing title, arrested and threatened with five years in prison and a fine of $10,000 after refusing to be drafted into the Army as a conscientious objector to the Vietnam War. “My conscience won’t let me go shoot my brother, or some darker people, or some poor hungry people in the mud for big powerful America,” declared Ali. “And shoot them for what? They never called me nigger, they never lynched me, they didn’t put no dogs on me, they didn’t rob me of my nationality, rape and kill my mother and father. … Shoot them for what? How can I shoot them poor people? Just take me to jail.”

As First Amendment scholar David L. Hudson Jr. notes, “Ali’s remarkable career and life placed him at the vortex of these First Amendment freedoms… Ali freely exercised his religious faith. He regularly spoke provocatively on a variety of topics. The press was abuzz with coverage and criticism. Thousands assembled in support of him, and the champion himself took part in rallies, parades and marches. Some petitioned the government to redress the injustice of his conviction for refusing military service, which resulted in his being exiled from the boxing ring for his beliefs.”

It took a legal battle all the way to the U.S. Supreme Court for Ali’s religious objections to serving in the Army to be given credence and his First Amendment arguments to prevail. The case was Clay v. United States.

That was in 1971.

Forty-five years later, Ali is dead, fear is alive, and free speech is being dealt one knock-out punch after another.

Indeed, talk-show celebrity Piers Morgan has been soundly trounced and roundly censured for daring to suggest that Ali—a champion of the First Amendment who liberally peppered his speech with words (nigger and Uncle Tom) and opinions (“the white man is the Devil“ and “I’m sure no intelligent white person watching this show … want black boys and black girls marrying their white sons and daughters“) that would horrify most of his politically correct fans—made more “inflammatory/racist” comments than Donald Trump.

Speaking of Trump, in Fresno, California, a third-grader was ordered to remove his pro-Trump “Make America Great Again” hat because school officials feared for his safety. The 9-year-old boy refused, citing the First Amendment.

That was the same argument—a concern for safety—officials used in 2010 when they ordered several high school students to remove their t-shirts emblazoned with the American flag. The concern: wearing the flag on Cinco de Mayo, a Mexican day of celebration, might offend Hispanic students attending the school. The U.S. Supreme Court agreed with the school’s logic. Coincidentally, that same week, the high court also ruled against Confederate flag license plates on the grounds that they constituted government speech and might be offensive to African-Americans.

For those of us who came of age in the 1960s, college campuses were once the bastion of free speech, awash with student protests, sit-ins, marches, pamphleteering, and other expressive acts showing our displeasure with war, the Establishment and the status quo.

Today, on college campuses across the nation, merely chalking the word “Trump” on the sidewalk is enough to have student groups crying foul and labeling it as hate speech in need of censorship. Under the misleading guise of tolerance, civility, love and political correctness, college campuses have become hotbeds of student-led censorship, trigger warningsmicroaggressions, and “red light” speech policies targeting anything that might cause someone to feel uncomfortable, unsafe or offended.

As I point out in my book Battlefield America: The War on the American People, this doesn’t even begin to touch on the criminalization and surveillance of various forms of speech that the government deems to be hateful, anti-government, extremist, bullying, dangerous or inflammatory.

One could say that we have allowed our fears—fear for our safety, fear of each other, fear of being labeled racist or hateful or prejudiced, etc.—to trump our freedom of speech and muzzle us far more effectively than any government edict could.

Ultimately the war on free speech—and that’s exactly what it is: a war being waged by Americans against other Americans—is a war that is driven by fear.

America is in the midst of an epidemic of historic proportions. The contagion being spread like wildfire is turning communities into battlegrounds and setting Americans one against the other. Normally mild-mannered individuals caught up in the throes of this disease have been transformed into belligerent zealots, while others inclined to pacifism have taken to stockpiling weapons and practicing defensive drills.

This plague on our nation—one that has been carefully cultivated and spread by the powers-that-be—is a potent mix of fear coupled with unhealthy doses of paranoia and intolerance, tragic hallmarks of the post-9/11 America in which we live.

Everywhere you turn, those on both the left- and right-wing are fomenting distrust and division. You can’t escape it. We’re being fed a constant diet of fear: fear of terrorists, fear of illegal immigrants, fear of people who are too religious, fear of people who are not religious enough, fear of the government, fear of those who fear the government. The list goes on and on.

The strategy is simple yet brilliant: the best way to control a populace is through fear and discord. Confound them, distract them with mindless news chatter and entertainment, pit them against one another by turning minor disagreements into major skirmishes, and tie them up in knots over matters lacking in national significance. Most importantly, keep the people divided so that they see each other as the enemy and screaming at each other so that they drown out all other sounds. In this way, they will never reach consensus about anything or hear the corporate state as it closes in on them.

This is how a freedom-loving people enslave themselves and allow tyrants to prevail.

This Machiavellian scheme has so ensnared the nation that few Americans even realize they are being manipulated into adopting an “us” against “them” mindset. Instead, fueled with fear and loathing for phantom opponents, they pour millions of dollars and resources into political elections, hoping for change that never comes. All the while, those in power—bought and paid for by lobbyists and corporations—move their costly agendas forward, and “we the suckers” get saddled with the tax bills.

We have been down this road before.

A classic example is the fear and paranoia that gripped the country during the 1950s. Many huddled inside their homes and fallout shelters, awaiting a nuclear war. It was also the time of the Red Scare. The enemy this time was Communist infiltration of American society.

Joseph McCarthy, a young Republican senator, grasped the opportunity to capitalize on the popular paranoia for personal national attention. In a speech in February 1950, McCarthy alleged having a list of over 200 members of the Communist Party “working and shaping the policy of the U.S. State Department.” The speech was picked up by the Associated Press, without substantiating the facts, and within a few days the hysteria began.

McCarthy specialized in sensational and unsubstantiated accusations about Communist infiltration of the American government, particularly the State Department. He also targeted well-known Hollywood actors and directors, trade unionists and teachers. Many others were brought before the inquisitional House Committee on Un-American Activities for questioning. Regarded as bad risks, the accused struggled to secure employment. The witch hunt ruined careers, resulting in suicides, and tightened immigration to exclude alleged subversives.

“McCarthyism” eventually smeared all the accused with the same broad brush, whether the evidence was good, bad or nonexistent. McCarthy, like many do today, appealed to the low instincts of envy, paranoia and dislike for the intellectual establishment.

“The real scoundrel in all this,” writes historian David Halberstam, “was the behavior of the members of the Washington press corps, who, more often than not, knew better. They were delighted to be a part of his traveling road show, chronicling each charge and then moving on to the next town, instead of bothering to stay behind and follow up. They had little interest in reporting how careless McCarthy was or how little it all meant to him.”

However, on March 9, 1954, Edward R. Murrow, the most-respected newsman on television at the time, broke the ice. He attacked McCarthy on his weekly show, See It Now. Murrow interspersed his own comments and clarifications into a damaging series of film clips from McCarthy’s speeches. Murrow ended the broadcast with one of the greatest news commentaries of all time, also a warning.

We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine; and remember that we are not descended from fearful men. Not from men who feared to write, to speak, to associate, and to defend causes that were for the moment unpopular.

This is no time for men who oppose Senator McCarthy’s methods to keep silent, or for those who approve. We can deny our heritage and our history, but we cannot escape responsibility for the result. There is no way for a citizen of a republic to abdicate his responsibilities. As a nation we have come into our full inheritance at a tender age. We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home. The actions of the junior Senator from Wisconsin have caused alarm and dismay amongst our allies abroad, and given considerable comfort to our enemies. And whose fault is that? Not really his. He didn’t create this situation of fear; he merely exploited it—and rather successfully. Cassius was right. ”The fault, dear Brutus, is not in our stars, but in ourselves.” 

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Whether you’re talking about free speech, surveillance, police misconduct or some other symptom of a government that has grown drunk on its own power, the answer is always the same: “we the people.”

We need to reject fear as our guiding principle, and restore freedom to its rightful place at the center of our republic.

As William Ruger writes in a powerful editorial for Time:

We must vigorously re-make the case for free speech. We must recur to its great defenders from ages past and reintroduce their ideas to our fellow Americans. The wisdom of John Milton, John Locke and John Stuart Mill—not to mention that of Americans like George Mason and Justice Louis Brandeis—is as true today as it was in their times. We just have to remember it… we must transmit an understanding of the value of free speech to today’s Americans in order to ensure that it is protected for future generations. And perhaps even more importantly, we need to demonstrate a vigorous commitment to free speech. America’s success depends on whether we continue to embrace this fundamental freedom.

RICHMOND, Va. — A settlement has been reached in a lawsuit filed by The Rutherford Institute on behalf of a man who was arrested as he was engaged in a First Amendment protest against President Obama while lawfully carrying a rifle. The settlement in Brandon Howard v. John Hunter resolved the lawsuit to the mutual satisfaction of the parties, which included claims that the police violated Howard’s First Amendment right to free speech, Second Amendment right to bear arms, and Fourth Amendment right to be free from a groundless arrest when they confronted him with guns drawn and ordered him to the ground on the unfounded belief that Howard was violating the law by being in public with a rifle slung over his shoulder. Soon after the incident, the City of Hopewell Police Department admitted in writing that the incident involved a violation of department policy. The settlement included an apology by the defendant police officer acknowledging respect for citizens’ First and Second Amendment rights and stating “[it] was not my intention to compromise Mr. Howard’s rights under the Constitution.”

The Rutherford Institute’s complaint in Brandon Howard v. John Hunter is available at www.rutherford.org.

Battlefield_Cover_300“As this case shows, if you feel like you can’t walk away from a police encounter of your own volition—and more often than not you can’t, especially when you’re being confronted by someone armed to the hilt with all manner of militarized weaponry and gear—then for all intents and purposes, you’re under arrest from the moment a cop stops you,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Certainly, if you’ve been placed in handcuffs and transported to a police station against your will, that constitutes an arrest.”

According to the complaint filed in the U.S. District Court for the Eastern District of Virginia, on Monday, Aug. 26, 2013, Brandon Howard arrived at an overpass above Interstate 295 in the City of Hopewell, Va., and displayed a 6 foot by 4 foot sign that read “Impeach Obama.” Howard was carrying a DMTS Panther Arms AR-15 rifle slung over his shoulder on a strap, and a .380 caliber Bersa Thunder sidearm pistol in a belted holster on his waist. Howard lawfully owned each firearm and did not point or brandish them at any time while engaged in his First Amendment protest activity on the overpass. Howard displayed his protest sign for 30 minutes, but Howard did not directly engage with anyone.

At about 5:30 p.m., a police officer pulled up to the area, remained in his car and observed Howard. Thereafter, three to five additional police cruisers arrived at the scene with emergency lights engaged. Approximately eight officers exited these vehicles with their guns drawn and ordered Howard to drop his sign and get on the ground with his hands spread above his head. Howard complied with the officers’ orders. Howard explained that he had not threatened anyone but was simply exercising his First and Second amendment rights. Howard was then handcuffed and transported to the police station, where he was left, handcuffed, in an interrogation room for 90 minutes, after which time he had his firearms returned and was released. A month later, the Deputy Chief of Police acknowledged in writing that an internal investigation had concluded that one of the officers violated department policy and would be disciplined and sent to remedial training. Attorney Raul Novo of Richmond, Va., assisted The Rutherford Institute with the lawsuit and settlement.

CASE HISTORY

March 11, 2016: VICTORY: Police Settle Rutherford Institute Lawsuit Over Activist Held at Gun, Handcuffed and Arrested for Lawfully Carrying a Rifle During a Protest

October 22, 2015: Victory: Court Gives Green Light to Lawsuit over Activist Held at Gun Point by Police, Handcuffed and Arrested for Lawfully Carrying a Rifle During a Protest

September 25, 2015: Virginia Police Insist That Activist Was Not Under Arrest Even Though He Was Held at Gun Point by Police, Handcuffed and Taken to the Police Station

November 17, 2014: Citing 1st, 2nd & 4th Amendments, Rutherford Institute Sues Virginia Police for Violating Obama Protester’s Right to Free Speech and Lawful Gun Ownership

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“That’s the way the ruling class operates in any society. They keep the lower and the middle classes fighting with each other… Anything different—that’s what they’re gonna talk about—race, religion, ethnic and national background, jobs, income, education, social status, sexuality, anything they can do to keep us fighting with each other, so that they can keep going to the bank!”—Comedian George Carlin

“We the people” have been utterly and completely betrayed.

The politicians “we the people” most trusted to look out for our best interests, protect our rights, and ensure that the nation does not slip into tyranny have cheated on us, lied to us, swindled us, deceived us, double-crossed us, and sold us to the highest bidder.

Time and again, they have shown in word and deed that their priorities lay elsewhere, that they care nothing about our plight, that they owe us no allegiance, that they are motivated by power and money rather than principle, that they are deaf to our entreaties, that they are part of an elite ruling class that views us as mere cattle, that their partisan bickering is part of an elaborate ruse to keep us divided and distracted, and that their oaths of office to uphold the Constitution mean nothing.

Incredibly, even in the face of their treachery and lies, the great majority of Americans persist in believing that the politicians have the people’s best interests at heart.

Despite the fact that we’ve been burned before, most Americans continue to allow themselves to be bamboozled into casting their votes for one candidate or another, believing that this time they mean what they say, this time they really care about the citizenry, this time will be different.

Of course, they rarely ever mean what they say, they care about their constituents only to the extent that it advances their political careers, and it never turns out differently. We are as easily discarded the day after the elections as we were wantonly wooed in the months leading up to the big day. Those same politicians who were once so eager to pose for our pictures, smile at our jokes, and glad-hand us for our votes will, upon being elected, retreat behind a massive, impenetrable wall that ensures we are not seen or heard from again—at least, until the next election.

The joke is on us.

Battlefield_Cover_300As I point out in my book Battlefield America: The War on the American People, all of the caucuses, primaries, nominating conventions, town hall meetings, rallies, meet and greets, delegates and super-delegates are sophisticated schemes aimed at advancing the illusion of participation culminating in the reassurance ritual of voting.

It’s not about Red Republicans or Blue Democrats. It’s about Green Donors—i.e, those with money who can afford to pay for access.

Votes might elect politicians, but as a 2014 field experiment by political scientists at Yale University and the University of California, Berkeley, makes clear, it’s money that talks.

The experiment went something like this: members of Congress were contacted by constituents requesting meetings about pending public policy issues. As the Washington Post reports, “When the attendees were revealed to be ‘local campaign donors,’ they often gained access to Members of Congress, Legislative Directors, and Chiefs of Staff. But when the attendees were described as only ‘local constituents,’ they almost never gained this level of access.”

Conclusion: money buys access to politicians who are otherwise deaf, dumb and blind to the entreaties of their constituents.

It works the same with every politician and every party.

Indeed, the First Amendment’s assurance of a right to petition the government for a redress of grievances has become predicated on how much money you’re willing to shell out in order to gain access to your elected and appointed officials.

Then again, money has always played a starring role in American politics.

lincoln-bedroom-2007-seThe spoils system reared its greedy head under Andrew Jackson, who traded jobs in his administration in exchange for campaign contributions. For $1 million, donors could take part in Warren Harding’s poker parties and enjoy a sleepover at the White House. Lyndon Johnson had a President’s Club that cost donors $1000 a year. Nixon was prepared to sell ambassadorships for $250,000. And Bill Clinton famously allowed top-dollar donors to spend a night in the Lincoln Bedroom at the White House in exchange for roughly $5.4 million in donations to the Democratic National Committee.

Fast forward to the present day, and a $500,000 donation might get you invited to a quarterly meeting with Barack Obama. For a mere $5,000 donation, lobbyists are being given exclusive invitations to join Congressmen and senators for weekend getaways that include wine tastings, fly fishing, skiing, golfing, hunting, spas, seaside cocktail parties and more.

If you’re just a lowly citizen with limited cash, however, you’re out of luck.

Try contacting your so-called representatives without paying for the privilege, and see how far that gets you. I can assure you that you won’t be given the kinds of access that lobbyists, special interest groups and top donors enjoy.

Having been saddled with a pay-to-play system that provides access only to those with enough cash to grease the wheels of the political machine, average Americans have little to no say in the workings of their government and even less access to their so-called representatives.

trump-clinton-weddingDonald Trump, as he has boasted, might be able to buy and sell politicians of all stripes (including Hillary Clinton), but the average American would be hard-pressed to get the kind of access enjoyed by corporate executives, lobbyists and other members of the moneyed elite.

Indeed, members of Congress have to work hard to keep their constituents at a distanceminimizing town-hall meetings, making minimal public appearances while at home in their districts, only appearing at events in controlled settings where they’re the only ones talking, and if they must interact with constituents, doing so via telephone town meetings or impromptu visits to local businesses where the chances of being accosted by angry voters are greatly minimized.

And under the Trespass Bill, passed by Congress in 2012 and signed into law by President Obama, if you dare to exercise your First Amendment right to speak freely to a politician, assemble in public near a politician, or petition a government official for a redress of grievances, you risk a fine or a lengthy stay in prison.

Talk about self-serving.

Under the guise of protecting government officials from physical attacks, the Trespass Bill, a.k.a. “the Federal Restricted Buildings and Grounds Improvement Act,” criminalizes First Amendment activity by making it a federal offense, punishable by up to 10 years in prison, to protest anywhere the Secret Service might be guarding someone.

Mind you, the Secret Service not only protects the president but all past sitting presidents, members of Congress, foreign dignitaries, presidential candidates, and anyone whom the president determines needs protection, but is also in charge of securing National Special Security Events, which include events such as the G8 and NATO summits, the National Conventions of both major parties, and even the Super Bowl.

The law essentially creates a roving bubble zone where the First Amendment is effectively off-limits, thereby putting an end to free speech, political protest and the right to peaceably assemble in all areas where government officials happen to be present. Thus, simply walking by one of these events could make you subject to arrest.

31bc75e000000578-0-image-a-2_1456850087032“What that means in practice,” as The Intercept rightly points out, “is that campaign rallies for Donald Trump, who was granted Secret Service protection in November, and Hillary Clinton, who will be guarded for life as a former first lady, arethe very opposite of free speech zones under federal law. (The restrictions also apply to all appearances by former presidents and first ladies, as well as those of two other candidates, Bernie Sanders and Ben Carson, who are currently protected by the service.)”

Consider yourself warned: If you do dare to show up to a Trump or Clinton rally and even appear to be the kind of person who might engage in any kind of protest, lawful or otherwise, you could find yourself quickly dispatched to a “free speech zone” out of sight and sound of the candidates. (“Free speech zones” are government-sanctioned areas located far away from government officials, into which activists and citizens are herded at political rallies and events.) In fact, that’s exactly what happened to a group of black students at a recent Trump rally in Georgia. They were escorted by police to “‘free speech zones’ in a field shielded from the venue by a set of tennis courts, or outside a church about a quarter of a mile away.”

The message is clear: in an age of robber barons, “we the people” are expected to just shut up and vote.

The powers-that-be want us to be censored, silenced, muzzled, gagged, zoned out, caged in and shut down. They want our speech and activities monitored for any sign of “extremist” activity. They want us to be estranged from each other and kept at a distance from those who are supposed to represent us. They want taxation without representation. They want a government without the consent of the governed.

They want the police state.

free20speechThe system has been so corrupted and compromised that there are few left in the halls of government who hear or speak for us.

Congress does not represent us. The courts do not advocate for us. The president does not listen to us. And the First Amendment’s assurance of the right to speak freely and petition our government for a redress of grievance no longer applies to us.

So if representative government has become an exercise in futility, where does that leave us?

One of the key ingredients in maintaining democratic government is the right of citizens to freely speak their minds to those who represent them. In fact, it is one of the few effective tools we have left to combat government corruption and demand accountability.

If there is to be any hope of righting the wrongs that are being perpetrated against the American people, we must make them—our elected officials—hear us.

But where to begin?

Start by opening up a dialogue within your own community about what’s wrong with this country. Stop focusing on the issues that divide, and find common ground with your fellow citizens about issues on which you can agree. Focus less on politics and more on principles. Stop buying into the false and divisive narratives that are being promulgated by political windbags and start thinking and speaking for yourselves.

los_angeles_people-300x204Once you’ve found that common ground, whatever it might be, make enough noise at the local level—at your city council meetings, in your local paper, at your school board meetings, in front of your courthouses and police stations—and the message will trickle up. Those in power may not like what they hear, but they will hear you.

Remember, there is power in numbers.

There are 319 million of us in this country. Imagine what we could accomplish if we actually worked together, presented a united front, and spoke with one voice?

The police state wouldn’t stand a chance.

March on Albany

March on Albany, NYPL Digital Collection, Image ID 1602566

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”― George Orwell

Free speech is not for the faint of heart.

Nor is it for those who are easily offended, readily intimidated or who need everything wrapped in a neat and tidy bow. Free speech is often messy, foul-mouthed, obscene, intolerant, undignified, insensitive, cantankerous, bawdy and volatile.

While free speech can also be tender, tolerant, soft-spoken, sensitive and sweet, it is free speech’s hot-blooded alter ego—the wretched, brutal, beastly Mr. Hyde to its restrained, dignified and civil Dr. Jekyll—that tests the limits of our so-called egalitarian commitment to its broad-minded principles.

Unfortunately, our appreciation for a robust freedom of speech has worn thin over the years.

Many Americans have become fearfully polite, careful to avoid offense, and largely unwilling to be labeled intolerant, hateful, closed-minded or any of the other toxic labels that carry a badge of shame today. We’ve come to prize civility over freedom. Most of all, too many Americans, held hostage by their screen devices and the talking heads on television, have lost the ability to think critically.

Societies that cherish free speech relish open debates and controversy and, in turn, produce a robust citizenry who will stand against authoritarian government. Indeed, oppressive regimes of the past have understood the value of closed-mouthed, closed-minded citizens and the power inherent in controlling speech and, thus, controlling how a people view their society and government.

We in the United States have a government with a ravenous appetite for power and a seeming desire to turn the two-way dialogue that is our constitutional republic into a one-way dictatorship. Emboldened by phrases such as “hate crimes,” “bullying,” “extremism” and “microaggressions,” the government is whittling away at free speech, confining it to carefully constructed “free speech zones,” criminalizing it when it skates too close to challenging the status quo, shaming it when it butts up against politically correct ideals, and muzzling it when it appears dangerous.

Free speech is no longer free.

Nor is free speech still considered an inalienable right or an essential liberty, even by those government entities entrusted with protecting it.

We’ve entered into an egotistical, insulated, narcissistic era in which free speech has become regulated speech: to be celebrated when it reflects the values of the majority and tolerated otherwise, unless it moves so far beyond our political, religious and socio-economic comfort zones as to be rendered dangerous and unacceptable.

Consider some of the kinds of speech being targeted for censorship or outright elimination.

Offensive, politically incorrect and “unsafe” speech: Disguised as tolerance, civility and love, political correctness has resulted in the chilling of free speech and the demonizing of viewpoints that run counter to the cultural elite. Consequently, college campuses have become hotbeds of student-led censorship, trigger warnings, microaggressions, and “red light” speech policies targeting anything that might cause someone to feel uncomfortable, unsafe or offended.

Bullying, intimidating speech: Warning that “school bullies become tomorrow’s hate crimes defendants,” the Justice Department has led the way in urging schools to curtail bullying, going so far as to classify “teasing” as a form of “bullying,” and “rude” or “hurtful” “text messages” as “cyberbullying.”

Hateful speech: Hate speech—speech that attacks a person or group on the basis of attributes such as gender, ethnic origin, religion, race, disability, or sexual orientation—is the primary candidate for online censorship. Corporate internet giants Google, Twitter and Facebook are in the process of determining what kinds of speech will be permitted online and what will be deleted.

Dangerous, anti-government speech: As part of its newly unveiled war on “extremism,” the Obama administration is partnering with the tech industry to establish a task force to counter online “propaganda” by terrorists hoping to recruit support or plan attacks. In this way, anyone who criticizes the government online is considered an extremist and will have their content reported to government agencies for further investigation or deleted.

The upshot of all of this editing, parsing, banning and silencing is the emergence of a new language, what George Orwell referred to as Newspeak, which places the power to control language in the hands of the totalitarian state. Under such a system, language becomes a weapon to change the way people think by changing the words they use. The end result is control.

In totalitarian regimes—a.k.a. police states—where conformity and compliance are enforced at the end of a loaded gun, the government dictates what words can and cannot be used. In countries where the police state hides behind a benevolent mask and disguises itself as tolerance, the citizens censor themselves, policing their words and thoughts to conform to the dictates of the mass mind lest they find themselves ostracized or placed under surveillance.

Even when the motives behind this rigidly calibrated reorientation of societal language appear well-intentioned—discouraging racism, condemning violence, denouncing discrimination and hatred—inevitably, the end result is the same: intolerance, indoctrination and infantilism.

Thus, while on paper, we are technically still free to speak, in reality, we are only as free to speak as a government official or corporate censor may allow.

Battlefield_Cover_300The U.S. Supreme Court has long been the referee in the tug-of-war over the nation’s tolerance for free speech and other expressive activities protected by the First Amendment. Yet as I point out in my book Battlefield America: The War on the American People, the Supreme Court’s role as arbiter of justice in these disputes is undergoing a sea change. Except in cases where it has no vested interest, the Court has begun to advocate for the government’s outsized interests, ruling in favor of the government in matters of war, national security, commerce and speech. When asked to choose between the rule of law and government supremacy, this Court tends to side with the government.

In the 225 years since the First Amendment to the U.S. Constitution was adopted, the rights detailed in that amendment—which assures the American people of the right to speak freely, worship freely, peaceably assemble, petition the government for a redress of grievances, and have a free press—have certainly taken a beating, but none more so than the right to free speech.

Nowhere in the First Amendment does it permit the government to limit speech in order to avoid causing offense, hurting someone’s feelings, safeguarding government secrets, protecting government officials, insulating judges from undue influence, discouraging bullying, penalizing hateful ideas and actions, eliminating terrorism, combatting prejudice and intolerance, and the like.

Unfortunately, in the war being waged between free speech purists who believe that free speech is an inalienable right and those who believe that free speech should be regulated, the censors are winning. Free speech zones, bubble zones, trespass zones, anti-bullying legislation, zero tolerance policies, hate crime laws and a host of other legalistic maladies dreamed up by politicians and prosecutors have conspired to corrode our core freedoms.

If we no longer have the right to tell a Census Worker to get off our property, if we no longer have the right to tell a police officer to get a search warrant before they dare to walk through our door, if we no longer have the right to stand in front of the Supreme Court wearing a protest sign or approach an elected representative to share our views, if we no longer have the right to voice our opinions in public—no matter how misogynistic, hateful, prejudiced, intolerant, misguided or politically incorrect they might be—then we do not have free speech.

What we have instead is regulated, controlled speech, and that’s a whole other ballgame.

Just as surveillance has been shown to “stifle and smother dissent, keeping a populace cowed by fear,” government censorship gives rise to self-censorship, breeds compliance, makes independent thought all but impossible, and ultimately foments a seething discontent that has no outlet but violence.

The First Amendment is a steam valve. It allows people to speak their minds, air their grievances and contribute to a larger dialogue that hopefully results in a more just world. When there is no steam valve—when there is no one to hear what the people have to say—frustration builds, anger grows and people become more volatile and desperate to force a conversation.

The problem as I see it is that we’ve lost faith in the average citizen to do the right thing. We’ve allowed ourselves to be persuaded that we need someone else to think and speak for us. The result is a society in which we’ve stopped debating among ourselves, stopped thinking for ourselves, and stopped believing that we can fix our own problems and resolve our own differences.

In short, we have reduced ourselves to a largely silent, passive populace, content to watch and not do. In this way, we have become our worst enemy. As U.S. Supreme Court Justice Louis Brandeis once warned, a silent, inert citizenry is the greatest menace to freedom.

Brandeis provided a well-reasoned argument against government censorship in his concurring opinion in Whitney v. California (1927). It’s not a lengthy read, but here it is boiled down to ten basic truths:

1. The purpose of government is to make men free to develop their faculties, i.e., THINK. 2. The freedom to think as you will and to speak as you think are essential to the discovery and spread of political truth. 3. Without free speech and assembly, discussion would be futile. 4. The greatest menace to freedom is a silent people. 5. Public discussion is a political duty, and should be a fundamental principle of the American government. 6. Order cannot be secured through censorship. 7. Fear breeds repression; repression breeds hate; and hate menaces stable government. 8. The power of reason as applied through public discussion is always superior to silence coerced by law. 9. Free speech and assembly were guaranteed in order to guard against the occasional tyrannies of governing majorities. 10. To justify suppression of free speech, there must be reasonable ground (a clear and present danger) to believe that the danger apprehended is imminent, and that the evil to be prevented is a serious one.

Perhaps the most important point that Brandeis made is that freedom requires courage. “Those who won our independence by revolution were not cowards,” he wrote. “They did not fear political change. They did not exalt order at the cost of liberty.” Rather, they were “courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government.”

In other words, the founders did not fear the power of speech. Rather, they embraced it, knowing all too well that a nation without a hearty tolerance for free speech, no matter how provocative, insensitive or dangerous, will be easy prey for a police state where only government speech is allowed.

What the police state wants is a nation of sheep that will docilely march in lockstep with its dictates. What early Americans envisioned was a nation of individualists who knew exactly when to tell the government to go to hell.

BrandonRaub_2WASHINGTON, D.C. —  The U.S. Supreme Court has refused to hear the case of decorated Marine Brandon Raub, who was seized by a swarm of Secret Service, FBI and local police officials and involuntarily committed to a mental institution for a week after posting controversial song lyrics and political views critical of the government on his Facebook page. In asking the Supreme Court to hear the case, Rutherford Institute attorneys were seeking to overturn lower court rulings dismissing the case, which characterized concerns over government suppression of dissident speech as “far-fetched.” In rejecting the appeal, the Supreme Court also refused to establish standards to guide and constrain mental health professionals when they seek to commit individuals and to prevent commitment on the basis of a person’s exercise of his right to free speech.

“This case was about more than one Marine’s right to not be targeted for speaking out against the government. It was about whether Americans have the freedom to criticize the government without being labeled ‘domestic extremists’ and stripped of their rights,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Unfortunately, in refusing to hear this case, the Supreme Court has left us all vulnerable to the possibility that we can be declared mentally unfit, handcuffed, arrested and locked up against our will simply for exercising our right to speak truth to power.”

Brandon Raub, a decorated Marine who has served tours in Iraq and Afghanistan, uses his Facebook page to post song lyrics and air his political opinions. On Aug.16, 2012, Chesterfield police, Secret Service and FBI agents arrived at Raub’s home, asked to speak with him about his Facebook posts, and without providing any explanation, levying any charges against Raub or reading him his rights, handcuffed Raub and transported him to police headquarters, then to a medical facility, where he was held against his will for psychological evaluation and treatment.

In coming to Raub’s aid, Rutherford Institute attorneys challenged the government’s actions as a violation of Raub’s First and Fourth Amendment rights. On Aug. 23, Circuit Court Judge Allan Sharrett ordered Raub’s immediate release, stating that the government’s case was “so devoid of any factual allegations that it could not be reasonably expected to give rise to a case or controversy.” Rutherford Institute attorneys filed a lawsuit in May 2013, challenging the government’s actions as procedurally improper and legally unjustified. In February 2014, a U.S. District Court judge dismissed the lawsuit, rejecting concerns over government suppression of dissident speech as “far-fetched.” On appeal to the Court of Appeals for the Fourth Circuit, Institute attorneys claimed that the Chesterfield County mental health screener who recommended Raub’s seizure and commitment failed to exercise reasonable professional judgment in wrongly determining that Raub was mentally ill and dangerous, and that Raub’s seizure and detention were the result of a mental health screener’s dislike of Raub’s “unpatriotic” views on federal government misconduct, thereby violating the ex-Marine’s First Amendment right to freedom of speech. The appeals court subsequently affirmed the lower court judgment.

Attorneys William H. Hurd and Stephen C. Piepgrass of Troutman Sanders and Anthony Troy and Charles A. Zdebski of Eckert Seamens Cherin & Mellott assisted The Rutherford Institute in its defense of Brandon Raub.

RICHMOND, Va. —The Rutherford Institute has asked a federal appeals court to reject a lower court ruling that confers sweeping power on the government to police private ideas and equates a trademark registration with a form of government-sanctioned speech. Weighing in before the U.S. Court of Appeals for the Fourth Circuit in Pro-Football, Inc. v. Amanda Blackhorse, et al., attorneys for The Rutherford Institute and The Cato Institute argue that a district court order allowing the government to cancel the federal trademark registration of the NFL Redskins and refuse registration to other applications it deems “offensive” constitutes blatant content and viewpoint discrimination and imposes a “hecklers veto” on speech that violates the First Amendment’s protection of even unpopular speech.

In a related matter, attorneys for The Rutherford Institute have filed an amicus brief in In re: Simon Shiao Tam, coming to the defense of “The Slants,” an Asian-American dance rock band whose trademark application was denied by the U.S. Patent and Trademark Office on the grounds that the trademark might disparage or offend persons of Asian heritage.

Click here to read The Rutherford Institute’s amicus brief in Pro-Football, Inc. v. Amanda Blackhorse .

“Whether the debate is over a trademark for the Slants, the Redskins, or a specialty license plate for the Sons of Confederate Veterans, the sticking point remains the same: how much do we really value the First Amendment, and how far are we willing to go to protect someone else’s freedom of speech, even if that speech might be offensive to some?” asked constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “The end result remains the same: outright censorship and the creation of a class system that renders speech perceived as politically incorrect, hateful or offensive as inferior and less entitled to the full protection of the law.”

The Redskins have been waging a 20-year battle to protect the football team’s name in the face of charges that it is offensive to Native Americans. In 2014, the Trademark Trial and Appeal Board voted to cancel the Redskins’ trademark, declaring it to be offensive to Native Americans and therefore in violation of the Lanham Act, which prohibits names that “may disparage” or bring people into contempt or disrepute. In asserting the team’s First Amendment right to retain its name, the Redskins argued that the team name is a valuable commodity, in which the NFL team has invested millions of dollars for promotions and protections of trademarks. Moreover, the team claims that the Redskins name honors Native Americans rather than disrespecting them. The Redskins brought an action challenging the TTAB’s cancellation of the trademarks in Virginia federal district court, but that court upheld the ruling asserting that cancellation did not violate any First Amendment rights of the Redskins.

In challenging the district court’s ruling, The Rutherford Institute argued that the trademark statute allowing cancellation or denial of registration if a mark “may disparage” a particular group is unconstitutional on its face because it discriminates against speech that a government official or body considers inappropriate or offensive.

Affiliate attorneys Megan L. Brown, Joshua Turner, Christopher Kelly, Jennifer Elgin, and Dwayne D. Sam of Wiley Rein LLP in Washington, D.C., assisted The Rutherford Institute and The Cato Institute in advancing the arguments in thePro-Football, Inc., brief.