Have focused more on the process instead of the people. I think it is a real sad moment when were focussed far more on the process of what time call was placed versus the fact that there was loss of military soldiers and there were individuals that were killed in action. We should be talking about the heroes. We should be talking about their lives and that hasnt been the focused. There are congressional leaders calling for an apology. Will there be an apology . Im sorry. Theres congressmen like Elijah Cummings calling for an apology from the chief of staff. I dont think that general kelly was wrong and i dont sympathy he should offer an apology. Where did he get that information . He was there. Everyone wants to narrow this down to a nineminute speech. This is something that took place over the course of the day. You have two different accounts. Im talking about when he raw and emotional accounts that anyone could give. I think he has a lot of credibility on this topic and a lot of credibility in general given the life of service that he has lived and i take him at his word and i dont have anything further to add beyond that. It was about the discrediting of wilson. Thats what they looking for an apology for. I think the account that hes given reflects what he saw that day and i think he has again, the highest level of integrity and i support him in his account of that interaction whands he saw and how he felt and what he saw take place that day. Awhands saw and how he felt and what he saw take place that day. Ndwhande saw and how he felt and what he saw take place that day. Whands he saw and how he felt and what he saw take place that day. Whan he saw and how he felt and what he saw take place that day. Hwhas he saw and how he felt and what he saw take place that day. What felt and what he saw take place that day. What he saw and how he felt and what he saw take place that day. Lets go back to another question. Can you move to the mike or can the mike move to you. Running a little late. Weve had an amazing conversation. Lets go for another ten minutes or so. Get you home to your kids. Maybe five minutes or so. Its a really early morning. Maybe seven. I have a question for the press secretary. You say you support the president s role in challenging and critiquing the president. What is a critique of the president that someone has levelled has been valid or fair . I think certainly on the front end of the administration we could have done a better job of providing information to the press. I think some of that was a little bit of a learning curve. I have the advantage of being second in the administration in this position and so i had the opportunity to learn a lot of different things. I think that we could have done a better job of information to help impact the stories that would reflect the Administration Position a lot better if we had been more forthcoming on the front end. I think a lot of that was a procedure process and us learning some of that kind of on the job training a little bit on the front end. I think thats somewhere where we could have done a better job in relation to the press and the media. Thats where i feel more comfortable talking about where critiques might be fair. We might be able to get two. We can definitely get one more. Lets go to the back. Gentleman over there who just turned your head backwards. Mike is coming. Id like to ask about anthony scaramuc scaramucci. Last question. What sort of decisions were made in order to hire him and allow him to give or direct him to give his interview with the New York Times . New yorker. New yorker. You wish. Every night i go to sleep and go man. Mucc was mine. They just took him away. Tmi. That was a nice insight into glens life there. Or lack thereof. Now you know how to get him. In terms of the hiring process, i cant speak to that. That would have not been something i would have been a part of. In terms of the interview, that was a decision he made. You would have to ask him how he feels about the decision to do that. Will you be giving interview like that . No, i dont think so. I dont know if that answers your question. Its not a lot of information. That was a decision he made to do that interview and youd have to ask him for any further detail on it. Okay. We are going to do one more. Last question. Not that it wasnt an amazing question. Gentleman here. Yes. Yes, you. Give him the microphone. Go long. Run. Hes running. Hes coming. Good evening. First off. Thank you you spefor spending a evening with us at the best university in the world, the George Washington university. [ applause ] hold it. Hold it. I think that counts as a statement. I think he may have been a plant. No, no but dont stop now. My name is henry wong. Im studying international affairs. Ill try to keep my question as short and sweet as possible. My question is regarding president trumps tweet which has stirred up a lot of discussion, ie, the famous misspell i misspelli misspelling co vorvfefe. How has your job changed this year in order to respond more precisely and accurately towards trumps tweet. I think that was a question for you guys. Im off the hook for the last one. The question, if we got it right is how has the president s twitter instincts and other instincts change the way we do our job . Thankfully im on the air every hour. I frequently updating. What youve got to do is ive got four different alerts for when he tweets so that im covered on every front to make sure i dont miss it. As soon as he tweets, we sent out a blast to the network to show what hes tweeted and everybody else is getting it on their iphones any way. Its kind of like a running commentary in the sometimes changeable way that he goes about his tweets and the topics that he flips back and forth to. Its something that we have whats that all about. Then we make the call to sarah to get some confirmation here. What is covfefe . Yeah, like what is covfefe. He said i wouldnt be president. I might not be president. I watched it and tweet right then. He also said something that was interesting too. Who saw the movie broadcast news. Remember when Albert Brooks was talking about the Leadership Qualities and he picked up phone and says blah, blah and william hurt says it right back. The president looks at twitter very much the same way. He said for him its like a typewriter. I type it on my smart phone and whatever he tweets and the next thing he knows its on television. Its his way of using a typewriter to get whatever he wants on the air in almost realtime. What do you do with the New York Times online or with his tweets . Do you report them in realtime. Are you reporting differently. How do you at yahoo handle tweets that are coming at any hour of the day or night . Its evolved. I think early on i remember getting in trouble. Ill share this detail. I was in trouble because i was on tv when i was on duty. I was on air while twheeeted something and i wrote the story while i was on air. Everything tweeted was there. Even if he does it in realtime, people are saying what does this mean . How is this playing with what he said before and should we take it seriously. I do think its notable, i have never written a story off an potus tweet. They are all from real donald trump. Its funny to me to see that. We got mad when the obama folked announced stuff on twitter. That seems like a quaint time. Reassertion of news. Judgment has been very important. Does this fit into a story we currently have and do we add the president. I love this phrase, took to twitter to say x. I do have on some issues writer first refusal. On north korea stuff and Foreign Policy in general i can come in and say dont or i will or go ahead. Sarah, can i turn to you. Thinking of this as a political scientist, how does this change political discord, the way political discourse has taken place and the power of the bully pulpit which you know well and have studied . One thing we say is the members cant coordinate. They look to the white house for a single message. The tweets fragment attention. Thats different than what were used to coming from a white house. Tweets can be good for discourse and they can be bad for discourse. I think its pretty widespread. What are the differents in recent months because its new every tweet he issued made it on the air in some form. Now its the ones that that are really big that get on the air. Theres still a lot thoefse. We would like to try to give sarah some parting words. I want to go back to the issue that olivier raises about potus or realdonaldtrump. It raises the question of what we will need a whole other panel to talk about. Some of the changes we have seen, permanent changes to the political landscape, what it means to be president , the interaction of the president with the public and press for ever, is the landscape changed in american politics or somebody specific to donald trump term one or year one. That remains to be seen and probably is a whole other panel. The whca always likes to try to do educational panels throughout the year. Well be making an effort to do more of the normal. We hope whether youre in this room or watching on tv or live stream that you will stay in touch with us. After we go home tonight we all have email and twitter. And twitter. We would love to hear from you. Just taking a break for now. We do want to thank you for your time and give you the nofloor f a couple minutes. I wont take a couple minutes. I want to say thank you for inviting me. Allowing me to come and for a very open and positive back and forth. I appreciate the opportunity to come and answer questions. I think that it means since i took questions from most of the panel that i dont have to take questions from them tomorrow. No, no. Youre out of luck. Raising my hand tomorrow. In all seriousness, i appreciate the opportunity and i think the opportunity that you guys dont get to see but that the back and forth that we have on the daily basis with not just the folks up here but i see quite a few other white house reporters in the room. I do think that is an important relationship and one that i hope we can continue to improve and look for better ways for both of us to do our jobs, which i think is to get information to the american people. Thats to get accurate and informative information to the american people. The more we can Work Together to do that, i think the better off were all going to be. I appreciate the opportunity and look forward to continuing to do this more and certainly taking more questions from these guys. I would like to thank the Co Association and all the folks on days. You work long days. I know youll be back super early to in the morning and you have a family to get back to tonight. I think that conversations like this are important. This is an unusual one. Youre across the poedium from one another. For us to have an opportunity to engage the conversation about how this works and the issues. For you to hear some of the concerns expressed by people here as you do all the time and take the questions from the floor is important. We at this university and with our students and faculty who are doing the research and others try very hard to understand this process. Theres a lot of talking about the First Amendment and what it means. We study it here because its a corner stone of what were all about. You are, all of you, on that front row. Youre shaping history. I think that we all very much appreciate the conversation here. I think we also look to you to have this respectful but adversarial relationship with one another. The questioning of authority that you talked about is what this is all about. Holding you to account is their job and you should hold them to account. We should be held to account for what in journalism do and write and get right and get wrong. Thats one of the reasons that the public has so little confidence because they dont see that level of accountability as a two way street. A very healthy thing. Many thanks to all of you for being here. Thanks to our audience or cspan and live stream audience for joining us. Thank you so much for your time and being so generous with what is your most precious commodity, which is your time. Thank you. [ applause ] cspan washingtons journal live every day with policy news that impacts you. Coming up this Tuesday Morning a fu look at the Affordable Care act with raul ruiz. Issue one talks about regulating political ads on social media platforms. Be sure to watch cspan washington journal live at 7 00 eastern Tuesday Morning. Join the discussion. Now a discussion on recent federal court cases that question whether offensive language is protected as an expression of free speech. Some of the free speech. Some of the cases involve Flying Dog Brewery, and Football Team and the slants. This is just under an hour. Good afternoon. Welcome to the Heritage Foundation. In our douglas and Sarah Allison auditorium. We welcome those here and online this afternoon. We ask you silence your devices as we begin. Everyone online is welcome to send a question at any time simply emailing speaker heritage. Org. Hosting our discussion is Tiffany Bates for judicial and legal studies. She researchers and writes about the courts, judicial nominations and other constitutional issues. She was cohost of heritages potus one one podcast, a contributor to the daily signal, the Multimedia Organization and coordinator the media advocacy programs. Please join me in welcoming Tiffany Bates. Tiffany. Thank you and welcome to the Heritage Foundation. Thanks for joining us to celebrate free speech week by highlighting recent First Amendment victories for beer, fans and sports as we will discuss later on. I will keep my introductions short so we can get to what were all here for, the beer. This summer the Supreme Court reiterated the proudest boast of our jurisprudence is protect the freedom to express the speech we hate. While it has long been the core of our free society it has come under sharp attack. The courts have pushed back continually extending First Amendment protections for what some call free speech. Well highlight three cases. First the Flying Dog Brewery after application to register a beer label for one of my favorite beers, raging bitch. We will see a short video of the band that went all the way to the Supreme Court this year after a Trademark Office refused to register their name because it may be disparaging. The Supreme Court found the disparagement law violated the First Amendment. Justice alito wrote it offends bedrock principles, speech may not be not allowed because it may offend. And a cancellation on the same disparagement law. After the Supreme Court handed down to the pin in june all of the redskins face said it controls the disposition in the redskins case and the court must enter judgment for thread skins. Its been four months but the Fourth Circuit has not done so. Is the court just taking its time or trying to distinguish the slants case in order to rule against the redskins. Well explore free speech with our great panel of experts. Jim caruso is the ceo of Flying Dog Brewery since 1994. The Third Largest brewery in the country is known for its world class beers combined with distinctive label art by ralph stedman. Jim is as passionate about the art as brew. In 2015 using damages awarded to flying dog in michigans court battle he created a nonprofit to raise the First Amendment principles. Hes received awards for his business prowess and First Amendment. He holds a bachelors degree from the university of mysterious and a degree in brewing science from an institute. Managing editor of the kato Supreme Court view, his interesting include constitutional law, legal and political philosophy and legal history. His writing and economic work has appeared in many news outlets and journals across the country. Hes also the cohost of free thoughts a weekly podcast that covers topics in libertarian theory, history and philosophy. Trevor holds a b. A. In philosophy from the university of colorado and jd from the university of denver. And finally an appellate lit gator on a wide variety of issues in state and appellate courts. Since starting his own practice in 1997, eric has been involved in a broad range of appeal issues including second, fifth and 13th amendments and constitution and statutory matters. Eric has been involved in over 100 Supreme Court matters and representing half a cozen parties on the merits and briefs. Eric holds a b. A. In molecular genetics from dartmouth and j. D. And served an as law clerk for the court and Supreme Court, clarence thomas. Thank you for inviting me to be on this panel. Thank you for the Heritage Foundation on the fine work you do on a day in day out basis. As most of you know probably better than i, free speech as we know it today didnt really exist before the 1960s. Im a child of the 50s so i observed the development of First Amendment law. By the 1970s i was passionately committed to the principles of the First Amendment both as one of the most basic human rights and First Amendment as the rock star of the constitution as floyd abrams describes it, the master foundational freedom for intellectual freedom, Political Freedom and economic freedom. When the First Amendment and my business intertexted was 1955 when we released a beer, road dog by the internationally famous artist, ralph stedman. We knew ralph through our connection with hunter s. Thompson. Ralph was painting this label live on the bbc. Theres a fun story behind it. Just to poke the bbc and essay he wrote on this beer he scribbled on there in his inevitable fountain pen font, good beer, no shit. [ laughter ] we received the label and laughed just as you did. We released it in denver, colorado and got huge press both for the distinctive label, back in 1995. A competitor complained to the Colorado Liquor Commission that the word shit was an obscenity, so they demanded we removed the product from the shelf or theyll suspend our license. We pulled a quarter million of beer from the shelf and rereleased the beer with good beer no censorship, not surprisingly, sued the Colorado Liquor Commission and six years later the colorado Supreme Court overruled the Colorado Liquor Commission. It is not an obscenity. In 2009, we released a beer again, thank you, ralph, with original label art and the name of the beer is raging bitch. As some of you may or may not know, most states require some sort of submission of labels before you sell the beer by state, a routine administrative process, we do hundreds of these per year. Unbeknownst to me, this beer was not approved for sale in michigan. It was rejected. We had shipped some and it was a mistake. Michigans response was clear and immediate. If we dont remove the beer from the shelves within 24 hours, the state police will be sent out to confiscate it and i could be charged with a felony. We removed the beer. [ laughter ] i appealed the decision of the Michigan Liquor control commission. For all of us who are concerned about and cherish our constitutional freedoms, we should be somewhat concerned with some of the reasons they gave for not liking this beer. They didnt like anything about it, the name, the art or the label copy. Some of the reasons at the appeal hearing were that Oprah Winfrey does not allow that word on her show. Wonderful. Im waiting for a reference to the constitution because they already assured me this is noa First Amendment issue. The other thing they told me is the Westminster Kennel Club no longer uses that word to refer to female dogs. Okay, i get it. They also said that it has to be removed from the shelf because the mere passive observance of this beer on the shelf will incite people to violent action. What i didnt know at the time for years they rejected the Michigan Liquor control commission had rejected any line of beer or spirit that had the word bitch in it simply because they didnt like the word and the bedrock part of the First Amendment is the government cant control speech because they dont like the content of it. Not surprisingly we sued the state of michigan, Michigan Liquor control commission and the commissioners as individuals. It was in the Western District was the first hearing. The ruling was in favor of the Michigan Liquor control commissioners and the court extended to them both quasi judicial and judicial immunity, basically saying, not really sure if this is a violation of your First Amendment rights but it doesnt really matter because theyre immune from being sued. That was then appealed to the sixth circuit. After four more years of waiting the sixth circuit ruled unanimously in our favor with the dissenting but concurrent opinion further saying not only are they liable to be sued for their violation of possible violation of flying dogs First Amendment rights, in fact this is a clear blatant violation of flying dogs First Amendment rights. We went back, settled with michigan. I used the proceeds of that to create the First Amendment society, a nonprofit. Its rather new but we have a Speaker Series and we have constitutional attorneys, law professors speaking about everything from sec regulations to Current Issues relating to the First Amendment. We are sponsoring a scholarship for Investigative Journalism at the university of maryland. I work in conjunction with a lot of liberty oriented group to speak at free speech events and college campuses. This is a big part of what we do. In short, why is a brewer here talking about the First Amendment . Because i spent 12 of the last 22 years in litigation or in courts suing states because they personally didnt care for a beer label. Thank you. Next, we will watch a short video from simon tam who is sorry he cant join us in person. Hello from sidney, australia. My name is simon tam, founder of the slants, the worlds first asian rock band and founder. Im sorry i cant be there personally today. I started this band over a decade ago because i wanted to create something that would empower asianamerican communities. It ended up being something that took me into a legal battle that lasted eight years against the u. S. Patent Trademark Office. I chose the band name so long ago because i wanted to change something that was a point of shame for me as a kid to a symbol of empowerment as an adult, the stories of me surviving being bullied and physically assaulted from other students would resonate with other marginalized communities who also had a difficult time with their identities. We wanted to reappropriate this outdated racial slur that wasnt that popular. It was a term as slant eye and a term our community started to uses in the 80s and 90s as a point of pride. So in the musical version we thought it would be Something Like debbie harry would front. We originally did it eight years ago. Its important for bands to do. The normal part of the career, as youre making national headlines, you register the mark so you can protect your brand. The whole point of the trademark system is to actually protect consumers. It wouldnt help folks if there were 10 bands all out there all with the exact same name so we created a system where people can apply for and protect intellectual Property Rights so there arent imi taitors, so if you buy tickets to see a band you can be sure it is the right band similar to any other kind of product out there. Its not traditionally been a place for the government to decide morality on. A filing system if you meet the requirements of your business, you should be able to have a legitimate business and protect those interests. For us, that simple process changed into a much larger fight when the government decided they would know what was best for the asianamerican community. They told me the name, the slants was disparaging to persons of asian descent even though we had no complaints from the community. To deny you this claim they have to find city council composite of the group finds it offensive, in this case, asianamerican. In the last decade they did not find a single asianamerican and instead relied on wikiwebsites, asianamerican. Com and unanimous chants and message boards. When we decided they wanted to strip the agency of our ability to determine whats right for ourselves we decided to appeal and continue fighting. After we brought independent national surveys, linguistics experts including one of the editors of the oxford dictionary and telling the government they were actually wrong, we still lost. The government decided they knew what was best. We started asking questions, if slant is an inherent racial slur like you claim it is, why have you registered it so many times before . There are literally thousands literally hundreds of applications for the term slant, many of them being registered . Mine is the only case in all of u. S. History to be denied slant on the grounds its offensive to asian people. We asked them why that was. The Trademark Office wrote it is incontestable the applicant is of asian descent and part of an asian band and therefore theres association of the disparaging term. In other words, they said we are too asian to use the mark. You go to theslants. Com and look at our pictures and footage of us in live concerts, people would automatically assume the racial slur because of our ethnic identities and not any other possible definition in the dictionary. Its really more of a convoluted way of saying anyone can register the slants as long as theyre not asian. Once i heard that i thought we would continue fighting, the government even though its intention was to protect marginalized communities was using its race against them, their political identities and social origin or gender. Anything controversial by the government would be grounds for them to deny us rights. We appealed an appeal and eventually won at the federal circuits one step below the Supreme Court they ruled the law being used against us was unconstitutional. 9 out of 12 federal judges agreed we should have the right to register our band name. Beyond that, it eventually went to the Supreme Court where we were victorious, one of the few unanimous rulings in Supreme Court history, 80, every single justice agreed the law was unconstitutional. Not only was it unconstitutionally vague but also engaging in viewpoint discrimination. For me, this experience has been exciting, inspiring and incredibly frustrating. It reminded me how important it is to protect free speech. A lot of times people present this false dichotomy you either have civil rights in one corner and Civil Liberties in the other. The reality is that if you want to protect civil rights you have to begin by protecting Civil Liberties because those tend to be the rights marginalized groups dont enjoy the most. We cant have the government choosing winners and losers who gets Police Protection or the Fire Department when a house is on fire or gets to register protests or register the trademarks or not. The government is there to protect us, not to in privilege upon our rights. Im thrilled that the decision was made. It was unanimous and struck a resounding chord showing the importance of the issue it was bipartisan, that we all have a vested stake in the right of the First Amendment and how important it was to fight for those rights. For me, i believe ill continue fighting on behalf of marginalized groups because thats what im most passionate about. If those skirmishes and issues intersect with free speech i definitely know where i stand on that. Thank you so much for listening. Thank you everyone for coming, to heritage and tiffany and for the beer. I no flying dog is actually from this is the brief i got signed by simon tam. Ill be auctioning it off later, that we wrote. I wrote a good part of this on behalf of kato and basket of deplorable people in favor of the band. I had a particular expertise writing for this group. Ive been in offensive bands and i know a lot about offensive music because i like offensive music a lot. They came to me and said, okay, trevor, you get to write all the band names and everything you want to put in here and thats what i did partially for the brief. Were talking about what bands are communicating with their band names. Its an underappreciated part of this case that the slants communicated an ethose they approached. Obviously if you think of other bands like the slits, queers and others, they tried to take it back and i tried to tweet that Pansy Division and the queers but they did not return my calls. You have the sex pistols, dead, snatch of the botnags, r b band and dying fetus. Dying fetus is not a lawrence welke cover band. Im sure youre not surprised. The revolving cocks is not a String Quartet and the sli ts are not paul anka. They could represent diversity of our nation and if you went to their concert and saw them play chinese one of their lyrics, Chinese Japanese dirty bees, look at these. You might be very offended a band was playing something so offensive to you. Theres a communicative aspect of naming the band the slants, not just the slants but Many Organizations have adopted names given to them by other people including the jesuits, quakers, mormons, yankees, impressionists, suffer jet was an insult back in the day and bitch from the lbgt community, quacker, all these things. It brings very interesting questions about how we deal with this. In our brief i put in we have footnotes including seinfeld where jerry suspects someone has converted to judaism so he can tell the jokes. And catholics, what used to be catholics, i can do that, too. If this guy gets polish citizenship we will have total joke telling community and brings up the question the government said because theyre asianamerican this is particularly bad and couldnt name theirselves this name. And the south park scene quoted about how we decide who decides for the community of color like asianamericans or africanamericans, who decides were offended. The pto was trying to say we think asianamericans are offended. Theres a great south park episode called with apologies to jesse jackson. Hey, toke, i want to let you know everything is cool now, my dad apologized to jesse jackson. Im supposed to feel better. You just dont get it. Jesse jackson said it was okay. He is not the emperor of black people. He told my dad he was. You have this problem who can validate the disparaging marks and its not going to be the pto. It has multiple parts, actually three decisions, what we have for one interesting point, Justice Samuel alito, my biggest concern in that case for free speech. If you know much about jurisprudence he has not been good on what we call offensive speech. In cyber v felt the west band church case, he wrote about the vicious assault that occurred in this case. In u. S. V stevens, videos about animals being crushed, said the Court Strikes down dissent, a valuable statute enacted not to suppress speech, to prevent horrific acts of animal cruelty. U. S. V alvarez, a case about a guy lying who won the congressional medal honor and navy cross and several other awards dissent with justices alito and thomas. You see that Justice Alito ends up writing the majority has not historically been into free speech. I think for him he saw this as part of the Political Correctness movement, put this in line with walker v sons of confederate veterans whether or not the state of texas could deny a Confederate Flag license plate in a very robust license plate private license plate system. Another thing in the case, Justice Breyer doesnt always turn everything into a balancing proportionality test i think is good, everything has to be weighed, a free form balancing case and case like Reed V Gilbert and he rejected categories for a basic multifactor balancing test hard to predict but Justice Breyer said we will protect this and not have a multijustice balancing test and the court did not fall to Political Correctness a big thing we talk about now. I felt this was very important because i didnt feel the redskins case hanging over them in a heated time people dont like what a lot of people are saying and get very upset, that didnt upset this decision and wasnt unconstitutional. We have the government speech doctrine i think is very important about this. One of the arguments the government said, hard to say it with a straight face, somehow trademarks returning government speech. The United States license case is what the court ruled strange association of Justice Thomas and four liberals saying license plates are government speech. This could push a very free speech thought. Government speech is allowed to be discriminatory, highly sensorious if the government is putting it up. This is a thing Justice Alito quoted in his dissent that the government was putting up propaganda posters to tell you to save water or steel during world war ii, theyre under no obligation to let someone put up posters that say the opposite of that and would expand government speech and be very dangerous. Walker seemed to do that. Im a big oklahoma sooners fan. You can get an oklahoma sooners license plate in texas. Youre a texas fan, right . Yes. Thats true, at 4 00. You can get a license in texas, and showing they endorse the sooners. Thats not the case. They said they didnt entertain the fact a trademark could be seen as government speech i think is very very valuable because walker seems to be the outer limit of the governments speech doctrine. Thats a very good thing. In general we had a very good assertion that offensive speech is protected, hate speech is protected, they didnt look twice at that particularly left wing College Students that think hate speech is not protected by the First Amendment the Supreme Court confirmed that as a general trend in terms of agreement over the last 20 years in particular we have seen free speech get more protected by the superiority in a lot of cases even more extreme than simon tams cases. Its always been a fun case and important teaching case. Fun to teach about the First Amendment. Ive already done this with High School Students who were going to run this with their class and do the smoot court and the facts of man, a great teaching case. If theres one thing we need now more discussion about the First Amendment, how important it is for people to protect the freedom from the thought they hate. If offensive speech and disparaging speech is not protected by the First Amendment, the First Amendment doesnt mean anything. Popular speech does not need to be protected by the First Amendment, if you Say Something very popular you dont need protections by the First Amendment. What we need people to understand and simon alluded to, why its important, today, you, tomorrow, me. Today you might say were going to have speech in some way. Tomorrow, it will be me if you let that happen. In general, its a very good thing the court did. We can hold the line and i congratulate simon and his band. I dont think theyre the first all asianamerican rock band but ill give him that because he went to the Supreme Court. Ive been given the incredibly brief task of telling you about the redskins case. I assume anybody whos within the vicinity of washington, d. C. Understands the pto attempted to cancel six of the redskins marks on the grounds they are disparaging. After tam came down, everybody in the case agreed it controlled and the redskins win. The government agreed, pro football agreed and even the challengers agreed it unequivocally controlled. That was in june or july. That was in july. That, i suppose, begs the question what is the Fourth Circuit thinking about . One can only hope that theyre distracted by something else. I called the lawyer then case, lisa black, whats up . Why are they not giving you your order . She said she had no idea. A shoutout to lisa, spectacular appellate brief. Lisa does a certain type of appellate law as well as anyone to poke her finger in peoples eye and tell them theyre wrong and doesnt care if they dont like being told so. She did it wonderfully in this instance. Kudos to her. If you thought his litany of trademarks and band names was bad, go over her brief, her litany of trademarks offensive was really something. Lets speculate. Unabashed speculation what in the world could be going through the Fourth Circuits head. I suppose theres two reasons why you might delay issuing the obvious order, remand with instructions to reverse. One is because they think they can remand without having to reverse. They clearly have to remand because the rationalale of it were clearly wrong. Is there a result to come to a different theory. I suppose i see two possible paths, one of which is a function of the really unappealing commercial speech discussions in the first Justice Alitos opinion, fortunately Justice Thomas rejected outright and the kennedy opinion effectively rejected. Justice alito attempting to distinguish the disruption of commerce via discrimination said, well, even if that were true its not narrowly tailored. But that can be fixed. That can be fixed potentially by the pto, issuing a new ruling saying we construe the statutory command in light of the courts ruling to only reach offenses given to minority groups subject to the traditional versions of discrimination. The reason why i worry about this a little bit. I dont actually worry about this because i think the Supreme Court would smack them in the head if they did it. I worry about it a little bit because the implications of tam arguably apply to hostile environments discrimination cases as well. Is it now a hostile environment for me to post the cover of the slants album in my cubicle at work or have redskins or god forbid some more offensive sign up in my cubicle that would offend various and sundry groups at work . I think thats a closer call in the current world but under my free speech world you cant fire me for having offensive signs at work. Thats not where the current environment would go. And unfortunately you cant make a case for native americans who might attend sporting events much like you would attend any other restaurant or public events. Why is not offensive for people who work for the redskins to have a hostile environment that call them redskins. You certainly couldnt have the kite Baseball Team and not get smacked around in a Racial Discrimination or hostile environment suit. Maybe theyre thinking of remanding whether or not you can narrow it and address some of alitos objections it wasnt sufficiently narrowly tailored to an antidiscrimination purpose. The other way they could go there, i hated the discussion of government speech in the tam case. I absolutely hated it. I think that whole line of case is wrong. I think the First Amendment applies to government speech. It allows it in many instances because it wins the balance. I dont think its categorically immune. I am a minority of maybe 1 1 2. Maybe trevor would but im pretty sure no one else would find it that way. But the discussion by Justice Alito was in part that the pto did not exercise control and discretion over what trademarks they might allow on. They said, fine, we will up our game and sensor more. We are exercising control and consequently, it is government speech. The other thing i didnt like about the government speech portion of tam, it ignores it treats speech as endorsement. We have a good line of cases in the free speech area that gives speech rights to editors who dont necessarily endorse but provide a range of acceptable alternatives excluding others. The classic example was hurley and st. Patricks day parade, no one could imagine they were endorsing every group and many not agree with each other but limit the field as editors. To the extent the government is acting as an editor, not direct speaker, i dont know why they wouldnt be exercising their own socalled government speech rights. I did take some encouragement by the fact alito didnt want to go there and tried to narrow it down but he narrowed it down in a very rehnquist like way which is oh, thats different. Rehnquist is a master of this, i have a case where the logic of this would go here and there, but those are different. Period next paragraph, thank you very much, end of opinion. As my wife reminds me sometimes things are not neat and clean and sharp but theyre messy and gray areas. The only thing you have to say is i have to draw the line somewhere. I know its not perfect so its different. Wave your hand, its different. I felt alito did a lot of that in the government speech area and government subsidies area and his attempt to distinguish the union cases. Perhaps thats what the Fourth Circuit is thinking about. On