FOX LOSES ONE

Let's hope that this is a harbinger of things to come in this litigation. Al Franken and his publisher are probably getting more than enough free publicity to cover any additional attorney's fees arising from this case -- and lots of people are buying the book just to tick Fox off -- but that does not excuse Fox's petulant and bullying attempt to protect its "brand image" and the image of its "talent" from being taken down a peg by Franken's satire. On a purely moral level, Fox should draw the appropriate lessons from its own treatment of other media outlets such as the NYT (regular whipping boy, mentioned by name, on the air): if you dish it out, be prepared to take it, folks.

MORE: Fox's public defense is that it is simply protecting its trademark and trying to keep the phrase "fair and balanced" from "slip[ping] into the public domain." See Jim Pinkerton's comments here. But that is too stark; clearly there is some room for discretion on the part of the company here. Moreover, the phrase had an existence before Fox trademarked it and surely that is relevant for our assessment of the situation. It can't be the case that Fox now owns a common phrase and can require permission from anyone else who wants to use it outside of the narrow realm of selling news commentary infotainment. How it has come about that the phrase "fair and balanced" can even be trademarked is another story that I want to know more about; again, I don't know anything about trademark law. From a layman's perspective, however, I find it hard to see how it's necessary for Fox to make a big show of protecting its trademark in cases at the margins. According to the news reports, Judge Chin claims that this is an "easy case." Do judicially prevailing standards of vigorous and continuous trademark protection require companies to litigate even in such "easy cases"? Given the clear threats to freedom of expression involved here -- and the clear danger that a contrary ruling would grant corporations more power to crush dissent in the name of protecting brand images -- isn't the common sense approach of Judge Chin easily predictable before the case even is filed?

MORE: Go to Kos for some fair and balanced commentary. I refuse to put quotes around that phrase any more. I own the English language as much as Rupert Murdoch does, even when I'm talking about news commentary!

TRADEMARKS CONTINUED

It's worse than I thought. This is actually the second lawsuit in Verizon's attempts to preserve it's Madison Avenue crafted, hip lifestyle-enhancing image untarnished. Newsrack Blog has the details.

Josh Cherniss is also ticked off by Verizon's image-making tactics, and he also directs (via Waldheim) folks to a union website where they can join with others to show support for the unions.

Naomi Klein helps make sense of why Verizon is so adamant about protecting the words coming out of their hipster adman's mouth:

In the corporate world, once a "brand identity" is settled upon by the head office, it is enforced with military precision throughout a company's operations. The brand identity may be tailored to accommodate local language and cultural preferences (like McDonald's serving pasta in Italy), but its core features-aesthetic, message, logo-remain unchanged. This consistency is what brand managers like to call "the promise" of a brand: it's a pledgethat wherever you go in the world, your experience at Wal-Mart, Holiday Inn, or a Disney themepark, will be comfortable and familiar. Anything that threatens this homogeneity dilutes a company's overall strength. That's why the flip side of enthusiastically flogging a brand is aggressively prosecuting anyone who tries to mess with it, whether by pirating its trademarks or by spreading unwanted information about the brand on the Internet.

At its core, branding is about rigorously controlled one-way messages, sent out in their glossiest form, then hermetically sealed off from those who would turn that corporate monologue into a social dialogue. The most important tools in launching a strong brand may be research, creativity, and design, but after that, libel and copyright laws are a brand's best friends.

The passage is from Klein's essay "The spectacular failure of Brand USA," which you can read here. Klein develops this argument further in her book No Logo, which is absolutely indispensible, in my view, if you want to try to make sense of the corporate strategy in these kinds of trademark suits. The basic claim that is relevant here is that corporations have engaged in an aggressive strategy of crafting brand identities around "lifestyles," and that this strategy has helped to produce a particularly virulent form of what Habermas would call the "colonizing of the lifeworld," but what ordinary folks can just call corporate takeover of common property such as language.

A while back, Norman Rosenberg (History and Legal Studies at Macalester College) wrote a book on the history of libel law called "Protecting the Best Men"; probably it's time for a book on trademark called "Protecting the Best Corporations," which could draw an explicit analogy between the attempt of early libel law to protect reputations and current trademark lawyers' attempts to protect corporate and brand images.

"FANTASY IDEOLOGIES"

Some rambling thoughts: This article came out last year, but I hadn't seen it until now, and at any rate it is worth reflecting on again given the bombing of the UN embassy in Iraq (via Straussian.net). Harris's argument is that the terrorist attacks on 9-11 (and al-Qaeda operations in general) are more accurately described as enactments of what he calls a "fantasy ideology" than as acts of war in a traditional sense. Harris argues that al-Qaeda is best understood in the same way that Italian fascism should be understood, as a kind of collective political tale of glory that is in some sense a reaction against the ordinary world of causation and which employs a different ontology (in al-Qaeda's case, that God causes events). The argument is subtle and interesting and you should take a look at it if you haven't already. It also meshes quite well with Thomas Nephew's discussion of Sayyid Qutb's borrowings from French fascist thought.

One aspect of Harris's argument that is troubling, however, is that the other "fantasy ideologies" that he mentioned (most prominently: antebellum southern pro-slavery thought, Italian fascism and national socialism) were only defeated after horribly destructive battles that pitted democratic nation states against nation states (or an asserted nation, in the case of the south) that were led by people in the thrall of the fantasies. The scars that these battles left have lingered for decades. Ultimately, it has proven impossible to entirely "eradicate" either southern racist ideology or fascism as terrorist forces, so we should suspect that the language of total victory in the current war on terrorism is misleading even if it is comforting. "Fantasy ideologies" are endemic to modern life, apparently. Moreover, to the extent that such "fantasy ideologies" have lost ground after the military conflicts, it has been because of national commitments to a rejection of them, not merely because of intervention on the part of international organizations or foreign countries.

HEAD SCARVES AND EMPLOYER'S RIGHTS IN GERMANY

A woman can't be fired for wearing a head scarf to work, the German Constitutional Court announced today in a decision that it said required balancing religious freedom and the rights of the business owner.

A lower federal court had sided with the employee, who worked as a salesperson in the perfume section of a store and had recently decided to deepen her commitment to Islam, a decision that included wearing a head scarf in public. The employer had claimed that salespeople have "intense contact with customers," and that employers' freedom to fire them should be protected even if the basic reasons for the termination are religious.

Note the following paragraph, which rejects a categorical approach to rights:

In contrast to the position of the petitioner [i.e., the employer], the colliding basic rights of the employee and the petitioner do not in themselves provide any abstract standards that could determine how much restriction of the freedom to terminate employment the employer must accept in order to safeguard the [religious] freedoms of the employee in the context of a contract freely entered into by both parties. Rather, what is necessary is a weighing of the reciprocally protected basic rights of the contracting parties in the particular case; the result of this weighing is not definitively provided by the constitution itself. Rather, it is the job of the specialized courts, in the context of the particular case and with respect to the particular employment relations, to determine whether or not the employer's particular expectations for the conduct of the employee can justify termination, when the employee sees herself unable to comply with those expectations while acting within the realm of her constitutionally protected freedoms.

Entgegen der Auffassung der Beschwerdeführerin ergeben sich aus den kollidierenden Grundrechtspositionen der Arbeitnehmerin und der Beschwerdeführerin abstrakt keine Maßstäbe dafür, welches Maß der Einschränkung seiner Kündigungsfreiheit der Arbeitgeber letztlich hinnehmen muss, um den Freiheitsraum des Arbeitnehmers im Rahmen des von beiden Parteien freiwillig eingegangenen Vertragsverhältnisses zu wahren. Vielmehr bedarf es einer Abwägung der wechselseitig geschützten Grundrechtspositionen der Vertragspartner im Einzelfall, deren Ergebnis durch die Verfassung selbst nicht abschließend vorgegeben ist. Es ist vielmehr in erster Linie Sache der Fachgerichte, bezogen auf den konkreten Streitfall und das je betroffene Arbeitsverhältnis abzuwägen, ob im Einzelfall eine bestimmte Erwartungshaltung an das Verhalten des Arbeitnehmers eine Kündigung des Arbeitsverhältnisses rechtfertigen kann, wenn der Arbeitnehmer sich im Rahmen seiner grundrechtlich geschützten Freiheiten nicht in der Lage sieht, den an ihn herangetragenen Erwartungshaltungen gerecht zu werden.

The lower court based its decision on the inability of the employer to show that "disruptions" had actually happened because of the head scarf. It's not clear to me how much of a disruption would be necessary in order to show that the employer's business interests had been harmed, but the line of argument here does present itself as an explicit balancing of the basic rights of employer and employee, so, theoretically, the right to wear a head scarf at places of employment is by no means absolute.

The opinion is here, and a news account is here. A case concerning the rights of teachers to wear head scarves is still to be decided. This latter case has caused a media spectacle in Germany, so much so that the court issued this press release loosening restrictions on cameras in the courtroom and detailing the expected behavior of members of the press with regards to the proceedings. Reporters are directed to turn off their cell phones before entering the courtroom, for example.

SPORTY LAWYER ADS

German lawyers have a constitutionally protected right to engage in "image advertising," according to a case that the Bundesverfassungsgericht announced today. You can read the opinion here. The case concerned a sport lawyer who advertised her own professional gymnastic accomplishments with the GDR. She was taken to court by a rival over misleading pricing information in an advertising brochure. The court notes that regulation of lawyer advertising serves the purpose of maintaining public trust in lawyers and that this particular part of the advertising posed no threat to public confidence. In fact, people looking for sport lawyers might be interested in how sporty the lawyer is herself. The court overturned part of a lower court ruling that ordered the lawyer to refrain from advertising her professional athletic accomplishments, but left the rest of the ruling stand (forbidding the misleading price listing).

SCHLECHTER RUF

Poor Don Johnson.

NO COMMENT

I don't want to say anything about Judge Moore, except to point your attention to this poem that he reportedly delivered on Monday:

Our American Birthright

One nation under God was their cry and declaration,
Upon the law of Nature's God they built a mighty Nation.
For unlike mankind before them who had walked this earthen sod,
These men would never question the Sovereignty of God.
That all men were "created" was a truth "self-evident,"
To secure the rights God gave us was the role of government.
And if any form of government became destructive of this end,
It was their right, their duty, a new one to begin.

So with a firm reliance on Divine Providence for protection,
They pledged their sacred honor and sought His wise direction.
They lifted an appeal to God for all the world to see,
And declared their independence forever to be free.
I'm glad they're not here with us to see the mess we're in,
How we've given up our righteousness for a life of indulgent sin.
For when abortion isn't murder and sodomy is deemed a right,
Then evil is now called good and darkness is now called light.

While truth and law were founded on the God of all Creation,
Man now, through law, denies the truth and calls it "separation."
No longer does man see a need for God when he's in full control,
For the only truth self-evident is in the latest poll.
But with man as his own master we fail to count the cost,
Our precious freedoms vanish and our liberty is lost.
Children are told they can't pray and they teach them evolution,
When will they learn the fear of God is the only true solution?
Our schools have become the battleground while all across the land,
Christians shrug their shoulders—afraid to take a stand.

And from the grave their voices cry the victory has been won.
Just glorify the Father as did His only Son.
When your work on earth is done, and you've traveled where we've trod,
You'll leave the land we left to you, ONE NATION UNDER GOD!

This is serious stuff, but I'm not in a serious mood. I do think that this poem decides the Lynyrd Skynyrd - Neil Young battle in favor of the latter, though, if there was any doubt.

TO VERIZON

My rant:

I am dismayed about reports in the New York Times that Verizon has sued union officials for using the trademarked phrase "can you hear me know" [OOPS!] during a discussion with journalists. This suit is an abuse of the legal system and Verizon's directors and its counsel should be ashamed at themselves for this petty bullying tactic. In a labor dispute that already does not reflect well on the company, Verizon manages to make itself look like an even worse corporate bully. Please note that I am looking for alternate wireless service.

Sincerely,

Brett Marston

Think about it.

MORE: Thanks to Thomas for pointing out my spelling error here and below (silently corrected)! Argh.

MORE FUN WITH TRADEMARKS

Verizon sues union officials for using the trademarked phrase "can you hear me now?" (via Atrios)

Oh my.

If these kinds of suits have any merit to them, then they bespeak a serious problem with trademark law. If they have no merit, then they're frivolous attempts by corporations to put financial pressure on their critics -- in other words, a grave misuse of the legal system.

What kind of lawyers would support the filing of those papers?

NEWSRACK

Thomas at Newsrack Blog has got some great posts up; don't miss them. One is called "Sayyid Qutb's French Connection," which is a discussion of a recent article on the intellectual influences of French nobel prize winner Alexis Carrel on Sayyid Qutb, the intellectual grandfather of Al-Qaeda. And Thomas has got a couple of posts on German constitutional discussions on military force abroad, here and here. Good stuff.

STATS

Dan at Lies, Damn Lies, and Statistics has a nice post on incarceration statistics. I think that he downplays the role of the "war on crime" that has resulted in harsher penalties even as crime has fallen; some discussion of public fears of crime is probably necessary. The best discussion I've found is in a book that I have used several times in my classes but I think is still out of print: Anthony King's Running Scared, a book-length version of this article at the Atlantic Monthly. Here's a paragraph from the article:

The way in which the wars on drugs and crime were fought cannot be understood without taking into account the incessant pressure that elected officeholders felt they were under from the electorate. As one former congressman puts it, "Voters were afraid of criminals, and politicians were afraid of voters." This fear reached panic proportions in election years. Seven of the years from 1981 to 1994 were election years nationwide; seven were not. During those fourteen years Congress passed no fewer than seven major crime bills. Of those seven, six were passed in election years (usually late in the year). That is, there was only one election year in which a major crime bill was not passed, and only one non-election year in which a major crime bill was passed.

If you can find a copy of the book, read it. It's fantastic. King develops an account of the extreme electoral vulnerability of American politicians (extreme in comparative terms) and then discusses several policy areas, including the "war on crime," in which this electoral vulnerability has led to perverse outcomes.

Lifeandliberty.gov

New website at Justice: http://www.lifeandliberty.gov/. So now life and liberty are supposed to be associated in the public mind with the PATRIOT Act, and more particularly, with the current AG's beating the hustings in defense of the Act and in defense of his actions at Justice.

The site requires serious consideration (not forthcoming from me right now), but I want to note a few things:

• Note especially the "myths" page, here. In its current iteration, the site addresses itself to three points made by the ACLU, which is named. Clearly this administration sees itself as engaged in a public battle with the ACLU in particular. I suppose that DOJ is right, in a sense.
  

  In addition, if the PR campaign is aimed at conservative fence-sitters, then there's an additional reason to bring up the ACLU: they're the enemy #1 of conservative fundamentalists. Take a look at the ACLJ's materials, for example. I recently got an e-mail from them with the subject line "Take a stand against the ACLU!" which was part of a fundraising campaign ("Your gift can be DOUBLED - matched dollar for dollar up to $350,000 - but time is short, so please give generously right now!"). The ACLJ has also acted as Ashcroft's mouthpiece; see here, for example. And recall that the ACLJ is the only major law-related interest group that has a national radio show (at least as far as I know). It's also worth noting that ACLJ does not speak for all Christians, evangelical or otherwise, on the issue of the war on terrorism. Take a look at the commentary at the Rutherford Institute, for example.



• Note the "fair and balanced" polling on the "Support of the People" page, here. The AG is re-writing the old saying to read, "two polls do a summer make."


• Note also the "Congress speaks" page, here. Note that all of the quotes save one are from mid-October, 2001. 21 of the selected quotes are from Democrats and 15 are from Republicans (2 of the Republican quotes are from Senator Snowe). John Edwards gets two quotes, Bob Graham gets one. Not to put too fine a point on it, but did Janet Reno use taxpayer dollars to put up web sites to engage in partisan games of "gotcha"? I can't recall ever seeing one.
  

  Quotes from October 2001, in the direct aftermath of the September attacks, and in the midst of the anthrax letters which disrupted congressional activity, about a piece of legislation that has been criticized in a bipartisan fashion on grounds of both the process of its passage and its substance, are meaningless. They only prove that people supported (in public) a piece of complicated legislation at a difficult and trying time.

I'm sure that there's more to be said about this page. See Talk Left's commentary, for example. And I am by no means an expert on the PATRIOT Act, on law enforcement, on the war on terrorism, or on DOJ. I believe that John Ashcroft really is attempting to prevent future terrorist attacks and that DOJ is staffed by honorable people who know more than I do about government successes in the war on terrorism -- which makes it jarring when DOJ touts things like the Help the Needy prosecutions as a victory in the war on terrorism, at least absent additional public information.

A lot of center-left folks like me want to support the administration (none of us want to be subject to terrorist attacks) but are put off by the aggressive partisan tactics of the current AG, or what you might call John Ashcroft's political style, something that is more appropriate for the Senate floor than for DOJ. This website is an excellent (if transparent) effort at spinning information as part of a media campaign in favor of preferred policies. The fact that it wraps itself in the robe of "life and liberty" and the Declaration of Independence makes that fact more jarring, not less. But, then again, I am not the target audience for this site, I imagine.

STATE

The State Department tracks foreign media reactions to U.S. policies. Read the reports from last week here (the current ones aren't up yet). There's also a search capability here. An (anonymous) friend of mine "on the inside" pointed this page out to me.

TOM DELAY'S CONSTITUTIONAL UNDERSTANDINGS

From Tom Delay's interview on fair and balanced Fox News Sunday:

SNOW: All right. Let's switch to another topic. Texas — there is an imbroglio about redistricting. Republicans want to change the map because their Republican majority is substantial in your home state.

But there's a question. These same Republicans, a couple of years ago, agreed to a redistricting, or at least, in courts, got involved. Why should Republicans get another bite at the apple?

DELAY: Well, we haven't had the first bite. We're supposed to, by Constitution, apportion or redistrict every 10 years. The state legislature in Texas couldn't do it in the last legislature, and three judges did it and they did a very poor job, as evidenced that the fact that we have a minority of Republicans in our congressional delegation.

What — you know, we in Texas, Tony, have prided ourselves on honor, duty and responsibility. Unfortunately, the Democrats in the state legislature don't understand honor because they're violating their oath of office to support the United States Constitution. They don't understand their duty, which the Constitution calls for in redistricting. And they don't want to accept responsibility for it, so they ran.

We're insisting that the Constitution be upheld, and we feel very confident that if the state legislature does its duty and redistricts, then we will end up with a majority of Republicans in the congressional delegation.

For some reactions, see Jim Joyner ("The Democrats don't even need to come up with straw men if this is the best Republicans have to offer.") and Josh Marshall ("Persistent, chronic up-is-downism"). It should be a bit of an embarrassment for Mr. Delay that he can't really point to a constitutional text to support his claim that the U.S. Constitution requires state legislatures (as opposed to state governments) to redistrict every ten years. He is, after all, a person who has taken it upon himself to provide a constitutional education to visitors to his web site.

Delay has a stronger case that his critics claim, I think, though; it's just not a case based on the bare constitutional text. It is undoubtedly part of current Republican party constitutional understandings that judges are too powerful -- not with respect to all issues, of course, like federalism, although that criticism may come, too, if the federal courts include CA marijuana policy under the rubric of federalism, as Randy Barnett hints at here. The Republicans even have a plank in their platform attacking a Supreme Court decision (Roe v. Wade), and, in general, "cussing the court" should rank as one of the main gestures of the contemporary Republican party.

Moreover, Republicans argue that majoritarian institutions like state legislatures are to be preferred over non-majoritarian institutions for the resolution of many kinds of disputes, especially those that have to do with race (except affirmative action) and criminal justice (such as mandatory minimums). And a little more tenuously, think back to the fact that the arguments in favor of the outcome in Bush v. Gore had to do with the Florida Supreme Court usurping powers that were granted to the state legislature. I'm not asserting an exact analogy here, just the fact that there is a similar kind of argument in play, regardless of whether or not you buy the particular arguments in BvG.

So Tom Delay really is tapping into a kind of established constitutional understanding that is prominent among Republicans. His performance on Sunday was a classic example of Delay's desire to smear Democrats as unpatriotic (and not just wrong), and it's probable that the constitutional arguments were wholly instrumental to that intention. In addition, I doubt that he has thought about the approach to constitutional interpretation implied by his remarks (i.e., not textually anchored! not anchored in "original intent" explicitly!). Finally, it would be hard to sustain the argument that Democrats in the Texas legislature took an oath to uphold the Constitution as Republicans understand it and not as Democrats understand it. Still, I don't think it's a stretch to see Delay as advancing genuine constitutional arguments here. They might not hold up in court -- unless the Republicans are able to restructure the judiciary, that is!

POLICY DIFFUSION?

Montgomery and Howard county anti-tax activists are pushing for ballot initiatives to limit property taxes. Read "Maryland Activists Push for Tax Caps," from Sunday's WaPo. One part of the article caught my eye:

Maryland Del. Howard P. Rawlings (D-Baltimore) said he and Del. Sheila Ellis Hixson, a Democrat from Montgomery who chairs the House Ways and Means Committee, will probably introduce legislation when the General Assembly reconvenes in January to allow county councils to override the caps. The two introduced similar legislation this year, but it died in committee.

"The state has an interest when we support [giving] hundreds of millions of dollars to local governments, so we certainly want to look at their effort to address their own financial needs," said Rawlings, who chairs the House Appropriations Committee.

Much of legislators' frustration is focused on the Tax Reform Initiative by Marylanders ballot question that Prince George's County voters approved in 1978.

Many local officials have blamed the initiative, which caps the county property-tax rate at 96 cents per $100 of assessed value, for a weakened bond rating and the school system's financial distress.

"We have tremendous problems because of the tax cap," said Peter A. Shapiro (D-Brentwood), chairman of the Prince George's County Council. "At the most basic level, we have tremendous lack of financial flexibility."

Prince George's Executive Jack B. Johnson (D) has hinted that he wants to eliminate the initiative, although voters upheld it in 1996.

I don't know anything about the legal and political issues involved in state overrides of county caps such as the one instituted in Prince Georges County in 1978, but it's an interesting question.

And I had no idea that PG had a property tax cap in place. In a recent argument I had with our neighborhood anti-tax signature collector in front of the local grocery store, he didn't bother to mention that his drive is part of a process of policy diffusion from PG, probably because it wouldn't help his case in Montgomery County, which has a kind of subtle but racially and economically tinged rivalry with PG.

For comments in support of the tax cap, read this post at The Hedgehog Report. Suffice it to say that I don't agree with Hedgehog's take. One of the good things about living in Montgomery County is that there are excellent public schools, a good infrastructure, and excellent public transportation. If you want all of these things (the attributes of modern government, it seems to me), then you have to pay for them.

WEEKEND FUN

Thomas had Tony and Anita and me over for a crab fest on Saturday (mmmm, thanks, Thomas!), and one of the topics of conversation was Tony's recent appearance on C-Span's Washington Journal. I think that you can see the video (Real Player) here, and if that doesn't work, go to C-span's video page here. For some resulting fan mail that Tony and his compatriot Will Vehrs at Shouting 'Cross the Potomac have gotten, check out their posts here and here.

Tony doesn't know this, but inspired by this story on David Beckham's dirty hotel laundry, I'm auctioning (on E-bay) some napkins that he used on Saturday. . .

YALE INSIDER

Thanks to Yale Insider for adding me to their blogroll. The site is a good resource for the union take on happenings at Yale, so check it out.