Appellate Practice
Feb. 3, 2017
Can 'the Slants' Disparage Themselves?
Anna-Rose Mathieson (California Appellate Law Group) discusses U.S. Supreme Court arguments over disparaging trademarks and free speech in Lee v. Tam; John Whitesides (Angelo, Kilday & Kilduff) chats qualified immunity and interlocutory appeals, after a terse Supreme Court reversal critiques lower courts' consistent misapplication of the doctrine.
Two issues that have percolated through the Supreme Court recently comprise this week's podcast: The right to register disparaging trademarks, and the doctrine of qualified immunity.
The former of the two issues heard oral arguments before the Supreme Court recently in the case of Lee v. Tam, in which a band comprising Asian Americans attempted to register their band's name, "The Slants," as a trademark. The U.S. Patent and Trademark Office refused the registration as violating Section 2(a) of the Lanham Act, which forbids the registration of trademarks that might tend to disparage groups of people. Indeed, the very fact that term "slants" has been used to disparage Asian Americans is the reason the band selected the appellation, so as to rehabilitate and reappropriate it. Notwithstanding the beneficent aim, the Patent Trial and Appeal Board affirmed the registration denial. But the U.S. Court of Appeals for the Federal Circuit reversed, leaving the Supreme Court with the last word. Anna-Rose Mathieson will walk us through the lively oral arguments, in which justices expressed healthy skepticism over the constitutionality of the arguably vague and content-based statute's prohibition.
Then, John Whitesides, of Angelo, Kilday & Kilduff, will discuss another issue recently regarded by the country's high court, that of qualified immunity. The Supreme Court has revisited this issue several times over the past few terms, in all instances reversing lower courts that denied qualified immunity defenses. Mr. Whitesides discusses why lower courts tend to struggle with the doctrine, and what appellate attorneys should have in mind when mounting or facing a qualified immunity defense, or when bringing an interlocutory appeal of a qualified immunity ruling.
As always, don't forget CLE credit is available to show listeners; find a pertinent test below to complete and collect your CLE credit.
Have an idea for the show? Want to appear as a guest, or recommend another? Contact the host at brian_cardile@dailyjournal.com. <!-- Weekly Appellate Report Podcast -->
Brian Cardile
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