Thank you ACLU for standing up for the 1st Amendment. I’m still shocked that the Department of Justice is trying to ban the use and wearing of symbols.
By David Loy, Legal Director, ACLU of San Diego & Imperial Counties
The
Department of Justice is waging a long-running campaign to silence
members and supporters of a controversial motorcycle club from
expressing their affinity with the club by displaying its logo. This relentless attack should trouble anyone who cares about the freedoms of speech and association.
In a filing
Friday, we’re telling a federal court how the First Amendment prohibits
the government from banning symbols, no matter what they represent.
In
2008, the government filed RICO, or racketeering, charges against
certain members of the Mongols Motorcycle Club. In the process, the
Justice Department also sought forfeiture of the club's trademark in its
logo, a distinctive design that combined words and images to signify
membership in the group.
After members were
indicted, the Justice Department obtained a pretrial order authorizing
confiscation of items bearing the Mongols' logo. The U.S. attorney in
Los Angeles declared
that any officer who saw any club member “wearing his patch” could
“literally take the jacket right off his back.” Officers did just that,
confiscating jackets, belts, shirts, and other items displaying all or
part of the logo from club members and supporters — even though they
were not charged with any crime.
Representing
a club member, the ACLU of San Diego & Imperial Counties halted
this campaign of censorship in its tracks. The court ruled that the
government had no right to seek forfeiture of the trademarks because
they belonged to the club, not any individual member. The court’s rulings
also schooled the government in bedrock principles of trademark and
First Amendment law, calling the government’s theory “creative to a
fault.” Whatever crimes certain club members may have committed, the
government misused its power when it violated the rights of others to
express their identity as club members or supporters.
A
trademark is a unique form of property: It does not exist apart from
the business or entity it symbolizes, and it cannot be transferred
independent of that business or entity. Because the government has no
right to assume the identity of the Mongols Motorcycle Club, it cannot
seize the club’s trademark.
Protect our right to boycott
Even
if the government could take those rights, they confer no power to
confiscate items bearing the trademark. A trademark does not confer an
absolute right to prohibit all use of the mark. It only authorizes the
holder to prevent purely commercial use of the trademark that creates
confusion as to the origin of goods or services. That’s why the
Campbell’s Soup Company couldn’t prevent Andy Warhol from painting
images of Campbell’s Soup cans and Mattel can’t prohibit
Danish-Norwegian dance-pop group Aqua from singing “Barbie Girl” or stop an artist from photographing Barbie dolls.
Likewise, the government could not legally prevent an individual from
expressing support for the Mongols Motorcycle Club — or opposition to
abuse of power — by wearing its logo.
Trademark
issues aside, the First Amendment prohibits the government from
censoring the right of people to express their membership in or support
for an association. It also prohibits the government from targeting the
content or viewpoint of speech associated with a particular group,
regardless of what that group stands for.
The
government certainly can’t prohibit people from wearing shirts or
buttons supporting the Democratic Party, Black Lives Matter, or the
National Rifle Association — and it can’t prohibit people from wearing
the Mongols logo either.
Ignoring those
principles, the government indicted the Mongols Motorcycle Club in 2013
for RICO violations, again seeking forfeiture of the club’s trademarks
and threatening to confiscate items bearing the logo from members and
supporters of the club. As we explain in our friend-of-the-court brief,
the government’s attack on free expression remains no less illegal and
unconstitutional now than when it began over 10 years ago. Neither the
RICO forfeiture statute nor trademark law authorize the government’s
unprecedented attack on speech, which violates foundational First
Amendment principles.
Given the broad sweep of the RICO statute and corresponding abuse of forfeiture powers,
the government’s novel theory threatens to set a dangerous precedent
for silencing controversial or unpopular groups. History has shown that
the first victim of censorship is never the last.