Issues to Watch

Who Decides What is Too Scandalous? The Supreme Court and Scandalous Trademarks.


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Miranda Walker*

I.  Introduction

June 24, 2019, would herald the end of Erik Brunetti’s (Brunetti) nearly thirty-years worth of fighting with the Patent and Trademark Office (PTO) to get his brand name trademarked.  Samuel Hine, How O.G. Streetwear Brand FUCT Took a Free Speech Case All the Way to the Supreme Court, GQ (Jan. 30, 2019), https://www.gq.com/story/fuct-erik-brunetti-supreme-court-case.  FUCT, is nominally an initialism of the phrase “friends you can’t trust,” and the brand name of Brunetti’s clothing line.  Id.  Brunetti acknowledges that his clothing brand’s name may be a bit confusing and even embraces the confusion by stating: “We wanted people to question the pronunciation of it when they looked at the logo.”  Id.  However, that tongue-in-cheek attitude towards brand creation did not serve Brunetti well when he attempted to register the brand name FUCT as a trademark.  In Re Brunetti, 85310960, 2014 WL 3976439, at *1 (Trademark Tr. & App. Bd. Aug. 1, 2014) (Brunetti’s appeal of the PTO’s initial denial of his trademark was rejected). (more…)

Issues to Watch

From Platform to Publisher: The Call to Reign in the Political Influence of Big Tech


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Kristin McManus*

On July 25, 2019, presidential candidate Tulsi Gabbard’s campaign (the Campaign) filed a complaint against Google, LLC alleging violations of the First Amendment to the Constitution of the United States, Article I, § 2 of the California Constitution, the Lanham Act, and the California Unruh Civil Rights Act.  Complaint at 29, Tulsi Now, Inc. v. Google, LLC, No. 2:19-cv-06444, 2019 WL 3345356 (C.D. Cal. July 25, 2019).  The Campaign alleges that Google suspended its Google Ads account without warning or reason following the Democratic Party presidential debates on June 28, 2019.  Id. at 4.  This suspension is alleged to have cost the Campaign valuable supporters and potentially millions of dollars in campaign donations.  Id. at 4.  The Campaign also alleges that the Google email platform, “Gmail,” classified communications from Gabbard as “spam” at a disproportionately high rate compared to similar communications from other candidates.  Id. at 5. (more…)

Issues to Watch

Monumental Changes: Bears Ears National Monument and Executive Authority Under the Antiquities Act of 1906


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Jonathan Lucido*

In a letter to then-Secretary of the Interior, Ryan Zinke (Secretary Zinke), the National Trust for Historic Preservation identified Bears Ears National Monument (BENM) as one of the most significant cultural landscapes in the United States.  Letter from Stephanie K. Meeks, Chief Exec. Officer, Nat’l Tr. for Historic Pres., to Ryan Zinke, Sec’y, U.S. Dep’t of the Interior (June 26, 2017), https://www.regulations.gov/document?D=DOI-2017-0002-364407.  Just a few months later on December 4, 2017, President Trump moved to reduce the size of BENM from the 1.35 million acres previously designated by President Obama to approximately 201,876 acres.  Proclamation No. 9681, 82 Fed. Reg. 58081, 58081, 58085 (Dec. 4, 2017).  That same day, President Trump issued another proclamation in which he modified the size of the Grand Staircase-Escalante National Monument (GSENM).  Proclamation No. 9682, 82 Fed. Reg. 58081, 58089, 58093–95 (Dec. 4, 2017). (more…)

Issues to Watch

Again, Can’t We All Just Have a Process that’s Due? The Implications of Due Process on Non-Citizens


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Yemisi R. Giwa-Otusajo*

I.  Background

The Fifth Amendment of the Constitution of the United States provides that no person shall “be deprived of life, liberty, or property, without due process of law[.]”  U.S. Const. amend. V.  The Sixth Amendment of the Constitution further provides that a criminal defendant must be afforded the right to a “speedy and public trial, by an impartial jury,” and that the trial must be conducted with the assistance of counsel for an individual’s defense.  U.S. Const. amend. VI.  The right to the assistance of counsel is considered so essential to due process that if a defendant cannot afford counsel, the law requires the government to appoint counsel for the defendant.  Johnson v. Zerbst, 304 U.S. 458, 462–63 (1938).  The Sixth Amendment is premised on the assumption that an average criminal defendant lacks the necessary legal knowledge and skills to adequately defend themselves in court.  Id.  Therefore, the denial of a defendant’s right to counsel is a violation of their due process rights.  Powell v. Alabama, 287 U.S. 45, 71 (1932).  Although the Due Process Provisions of the Fifth and Sixth Amendments are limited to the federal government, the Fourteenth Amendment is interpreted to make these due process requirements applicable to the states.  See Argersinger v. Hamlin, 407 U.S. 25, 27 (1972). (more…)

Issues to Watch

Careful What You Wish For, You May Just Get It: New York State Rifle & Pistol Association Catches Flat on its Way to Second Amendment Challenge of N.Y.C. Handgun Travel Restrictions


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Aaron L. Sarro*

On January 22, 2019, nearly a decade after the United States Supreme Court issued its last Second Amendment opinion, the Court granted writ of certiorari to a petition that raised a constitutional challenge to New York City’s premises license handgun travel restrictions (the Restrictions).  Amy Howe, Justices to Review New York Gun Rights Case, SCOTUSblog (Jan. 22, 2019, 12:28 PM), https://www.scotusblog.com/2019/01/justices-to-review-new-york-gun-rights-case/.  The petition was filed by the New York State Rifle & Pistol Association (NYSRPA) and three resident gun owners—Romolo Colantone, Efrain Alvarez, and Jose Anthony Irizarry (collectively, Petitioners).  Petition for Writ of Certiorari, N.Y. State Rifle & Pistol Ass’n v. City of New York, 139 S. Ct. 939 (2019) (No. 18-280).  For Petitioners, receiving writ of certiorari marked their first—albeit seemingly short-lived—victory.  Adam Liptak, Fearing Supreme Court Loss, New York Tries to Make Gun Case Vanish, N.Y. Times (May 27, 2019), https://www.nytimes.com/2019/05/27/us/politics/supreme-court-gun-control.html.  Despite unsuccessful litigation in both the United States District Court for the Southern District of New York and the United States Court of Appeals for the Second Circuit, Petitioners’ likelihood of reaching the nation’s highest Court appeared all but certain; a result some consider inevitable due to the Court’s recent conservative shift.  N.Y. State Rifle & Pistol Ass’n v. City of New York, 86 F. Supp. 3d 249 (S.D.N.Y. 2015), aff’d, 883 F.3d 45 (2d Cir. 2018); see Liptak, supra. (more…)