Government Organizations Shouldn’t Enjoy Trademark Protection

According to its web site, Shields of Strength “provides fashionable, functional, and durable Christian fitness jewelry and accessories.” Those items include military “dog tags” engraved with quotes from scripture and sometimes the logo of the armed forces branch the customer belongs to.

When the Military Religious Freedom Foundation complained, the Marine Corps Trademark Licensing Office ordered the company to stop combining scripture references and the Corps’ emblem.

Most commentary on the dispute centers around “religious freedom” versus “separation of church and state,” but those seem like side issues to me.

When I served in the Marine Corps, many of my comrades wore crosses, St. Christopher Medals, and other religious symbols on the same chains as their dog tags. As long as a Marine is paying to have his own custom dog tag made with such things incorporated in them rather than hanging separately, and as long as that tag includes the relevant identification information, I just don’t see the problem.

What IS the problem?

According to MCTLO, “[T]he USMC Trademark Licensing Program exists to regulate the usage of Marine Corps trademarks such as the Eagle, Globe and Anchor worldwide. ”

Even assuming the correctness of “intellectual property” claims like copyright, patent, and trademark, such claims don’t past muster when asserted by the US government or its subsidiary agencies such as the Marine Corps. This is especially true of trademarks.

While the justifications for copyright and patent law have their own clause in the US Constitution (“to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”) US trademark law is justified in terms of Congress’s power to regulate interstate commerce.

The Marine Corps isn’t a private commercial entity. Nor should its symbols — which date back to 1868 in current form, to 1775 in various forms, and ultimately to the British marines the US based its service’s composition and mission on — be treated as the Marine Corps’ commercial property.

Just as written works created by government employees pursuant to their jobs fall into the public domain under copyright law, official government symbols should fall into the public domain under trademark law.

The Marine Corps logo is a piece of evolving history. It doesn’t belong to the Marine Corps as an organization, or even to the individual Marines who make up that organization. It belongs to all of us.

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Bernie Sanders, Joe Rogan, the Human Rights Campaign, and Truth in Advertising

On January 20, comedian and podcast host Joe Rogan mentioned that he’ll “probably vote for Bernie” Sanders in the Democratic Party’s presidential primary. Rogan cited Sanders’s decades of “consistency” as a “very powerful structure to operate from.”

More interesting than Rogan’s quasi-endorsement was the Human Rights Campaign’s negative response. The organization called on Sanders to “reconsider” his acceptance of Rogan’s support.

What’s the organization’s problem with Rogan?

“Bernie Sanders has run a campaign unabashedly supportive of the rights of LGBTQ people,” says HRC president Alphonso David. “Rogan, however, has attacked transgender people, gay men, women, people of color and countless marginalized groups at every opportunity.”

But in 2016, HRC backed Hillary Clinton — who had clung to marriage as a “one man, one woman” proposition until about a minute before the Supreme Court ruled otherwise — over “unabashedly supportive” Bernie Sanders.

HRC’s official motto is “Working for Lesbian, Gay, Bisexual, Transgender and Queer Equal Rights.”

If political advocacy was subject to “truth in advertising” laws,  that motto would be “Turning Contributions for Lesbian, Gay, Bisexual, Transgender and Queer Equal Rights Into Support for Establishment Politicians.”

As for Rogan, he doesn’t seem to have truly “attacked” anyone. He “jokes” about EVERYONE, which is a comedian’s job. And he muses, and lets his guests muse, about pretty much EVERYTHING through hours of podcasting every week.

I’ve listened to hundreds of hours of Joe Rogan’s podcast, and the one thing I’ve never heard come out of his mouth is hate for LGBTQ people or any other minority group.

What I did hear, in the same podcast in which he lauded Sanders, was this: “Treat each other as if they are loved family members. Treat people as if they’re you. And if you do treat them, and if they treat you like that … the world is a better place.”

Yes, Rogan has frequently expressed concerns about trans issues, especially in the world of sports. As a former professional fighter and commentator for professional fights, he’s interested in, and has talked extensively about, the difficulties of sorting athletes by gender in a gender-fluid age. But never, so far as I can tell, has he done so from a hateful viewpoint.

Yes, Rogan has made jokes at the expense of virtually every group on the planet. And he has a knack for turning those jokes into mirrors for himself and everyone else to see our shared humanity in.

I don’t always agree with Rogan, but he grapples honestly with tough issues instead of just pushing a  lucrative party line and denouncing all who dissent from that line. The Human Rights Campaign would better serve the community it claims to work for by adopting that approach instead of denouncing it.

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US v. Sineneng-Smith: Does Immigration Law Trump Freedom of Speech?

Are you free to express your opinions? The First Amendment says yes, but 8 US Code § 1324 says no. A case currently before the US Supreme Court, United States v. Sineneng-Smith, will presumably clarify the matter, hopefully in favor of free speech.

Evelyn Sineneng-Smith, an immigration consultant, allegedly cheated her clients by charging them $5,900 to file applications for a permanent residency program she knew they didn’t qualify for.

In 2013, a jury convicted  Sineneng-Smith on three counts of mail fraud and three counts of “encouraging or inducing illegal immigration for private financial gain.”

Under that US Code provision, “Any person who … encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” can be sentenced to hard time — five years in prison, ten years if it’s for financial gain, life imprisonment or even execution if someone is injured or put in jeopardy of death by that “encouragement.”

The US Court of Appeals for the Ninth Circuit set aside Sineneng-Smith’s convictions on those “encouragement” counts, ruling that the law is “unconstitutionally overbroad in violation of the First Amendment.”

Federal prosecutors appealed the Ninth Circuit’s ruling to the Supreme Court because that’s what federal prosecutors do .  Their case seems to be that we obviously can’t just have people out there saying whatever they want to say.

But we CAN, and SHOULD — in fact, according to the Constitution, MUST — have people out there saying whatever they want to say.

I encourage anyone and everyone who wants to come to the United States in search of work and/or safety to do so, and to stay here for as long as they please, whether the US government likes it or not.

I just broke the law.

And I did so partly for purposes of “commercial advantage or private financial gain.” I consider unfettered immigration an economic boon to everyone, myself included.

As the late economist (and apparent scofflaw) Milton Friedman noted, “Mexican immigration, over the border, is a good thing. It’s a good thing for the illegal immigrants. It’s a good thing for the United States. It’s a good thing for the citizens of the country.”

The Supreme Court should affirm the Ninth Circuit’s ruling.

If it doesn’t, I guess you’ll be waiting ten years or so for my next column.

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A Loophole for the Lawless: “Qualified Immunity” Must Go

On August 11, 2014, officers from the Caldwell, Idaho Police Department asked for Shaniz West’s permission to enter and search her home. They were looking for her ex-boyfriend. West authorized the search and handed over her keys.

Instead of entering and searching the home, though, the police brought in a SWAT team, surrounding the building.  “[P]olice repeatedly exceeded the authority Ms. West had given them,” a lawsuit she filed complains, “breaking windows, crashing through ceilings, and riddling the home with holes from shooting canisters of tear gas, destroying most of Ms. West and her children’s personal belongings.”

The “standoff” lasted ten hours. But it wasn’t really a standoff. The only mammal in the home larger than a mouse was West’s dog.

Then the cops went on their merry way, leaving West homeless for two months, with three weeks in a hotel as her only compensation.

She wants more, including the costs of repairing and replacing her ruined personal property, damages for pain, suffering and emotional distress, and punitive damages for the assault on a home she gladly authorized a search of, not an attack on. She deserves all of that.

She isn’t getting it — yet, at least — due to a loophole baked into a vile judicial doctrine called “qualified immunity.”

Qualified immunity protects government employees from liability for things they willfully decide to do while on duty, unless those actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

The loophole is the phrase “clearly established.”

The Ninth Circuit US Court of Appeals ruled that “no Supreme Court or Ninth Circuit case clearly established, as of August 2014, that Defendants exceeded the scope of consent.”

How’s that for circular reasoning? “You can only sue over X if someone else has previously successfully sued for X. ” And no one CAN have successfully sued for X, at least since the loophole was introduced in 1982, because they would have been turned away on the same grounds!

The Institute for Justice wants the US Supreme Court to take up West’s case.

It should do so, and when it rules it should go beyond nixing the “clearly established” loophole and do away with the doctrine of “qualified immunity” entirely.

42 US Code § 1983 provides that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” may be sued for damages.

Not just if someone has successfully sued on the same grounds before.

And not just if a “reasonable person” would have known better.

Government employees are supposed to know their jobs, including the limits on their authority. If they don’t, they shouldn’t be given guns and badges, let alone protection from liability when they exceed those limits.

“Qualified immunity” is the opposite of “equality under the law.”

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Mind-Reading? No, Behavior-Reading

You and I may not be able to read minds, but it doesn’t matter. You can usually tell what someone is thinking by what they are doing— their inner thoughts and beliefs become outward acts.

Even in those cases where their behavior conflicts with what they think, you’re better off responding to how they act rather than wondering what they might be thinking. How someone acts is more important than what’s in their mind.

It comes down to this simple truth:

I don’t care what someone believes as long as they act like an anarchist.

Which most people do, most of the time. As long as they don’t try to control, rule, rob, attack, etc. others– including me– that’s what really matters.

And really, isn’t that what everyone– even every statist– wants from others?

I don’t see people behaving as though they like being bullied and robbed, even when that’s what they advocate, politically. That’s because politics is self-contradictory and internally inconsistent. It fails everywhere it is tried, and always has.

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Two-and-a-Half Cheers for Elizabeth Warren’s Student Debt Plan

On January 14, Elizabeth Warren released a “Plan to Cancel Student Debt on Day One of My Presidency.”  Warren would use the US Department of Education’s “broad legal authority” to cancel up to $50,000 of debt on behalf of up to 42 million borrowers.

Warren’s plan makes a lot of sense politically.  She’s struggling for traction in the Democratic Party’s presidential nomination race. Big promises to  millions of borrowers and their families could make a big difference in the Iowa caucuses and New Hampshire primary.

As for the larger problem of college costs, Warren’s overall approach is a mix of some bad things ($150 billion in taxpayer money for Pell Grants and “minority serving institutions,” plus the costs of “universal tuition free public college”) and one and a half good things above and beyond her debt forgiveness plan.

The one good thing: She proposes to eliminate the “undue hardship” standard for discharging student debt in bankruptcy.

The half a good thing: She wants to ban federal funding for for-profit colleges.

That second thing would be a full good thing, instead of just half a good thing, if Warren removed the word “for-profit.”

There’s a strong historical correlation between easy availability of student loans and soaring costs of a college or university education.  It’s basic economics. By artificially lowering loan risk to direct money at a good or service, government increases debt and drives up the price of that good or service.

Under the present system, naive 18-year-olds are swindled into borrowing  more and more insane amounts of money to spend on less and less valuable college degrees. Then when they find themselves barely scraping by under the burden of repaying those loans, they can’t resort to bankruptcy.

Think about that for a minute.

I’m 53. If I go out tomorrow and take out a sub-prime mortgage on a home and a loan for a $40,000 car, then max out a bunch of credit cards, I can substantially get out from under that debt in bankruptcy court.

The 18-year-old who trusted others when they said “you need to go to college and here’s how” doesn’t have the same recourse as spendthrift Tom, who was old enough to know better and then some, but partied hearty anyway. That’s not right.

No, everyone does not need to “go to college.” That’s becoming more true than ever as inexpensive distance learning options and non-school certifications in various fields prepare Americans for many jobs better than seeking a degree does. We need to stop lying to America’s kids about both the costs and the benefits of a college education.

I’m all for Warren’s idea of “forgiving” a bunch of the existing debt. But any kind of lasting solution calls for less, not more, government involvement in general.

The Libertarian Party’s platform offers a better direction: “We support ending federal student loan guarantees and special treatment of student loan debt in bankruptcy proceedings. … Education is best provided by the free market, achieving greater quality, accountability, and efficiency with more diversity of choice.”

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