Author: TSA Press

“Fuct yeah!” went the screams of various court-watchers as the Supreme Court’s Iancu v. Brunetti decision hit the internet on Monday. The result will come as not much of a surprise to readers of this column and will bring cheer to those First Amendment maximalists who shiver when considering government restraint on speech.

The speech at issue here is a clothing company’s brand name, which comprises a word described during oral argument as “the equivalent of [the] past participle form of a well-known word of profanity.” This word, FUCT, had been denied trademark registration by certain language in the Lanham Act, language that has now been blown to bits by a Justice Kagan-penned opinion that was served up accompanied by a slew of in-part concurrences and dissents.

After the Supreme Court recently decided in Matal v. Tam that a Lanham Act prohibition against the registration of “disparaging” trademarks clashed with the First Amendment and was thus invalid, many believed that it wouldn’t be long before the Supremes closed the loop by striking down a similar prohibition against the registration of marks including “immoral” or “scandalous” or “immoral” material under §1052(a).

The FUCT mark was such a mark, as it was previously determined to have “decidedly negative sexual connotations” and found to be a “a total vulgar” under this Lanham Act section. Because the use of the mark’s homophone was often in the context of “misogyny, nihilism or violence,” it was found to be “highly offensive.” On these grounds, the FUCT mark’s trademark registration application was rejected by the Patent and Trademark Office, a decision that was upheld on appeal until it reached the Supreme Court.

There, the Court, referencing its Tam decision, conceded that they had not reached a consensus framework on whether the Lanham Act prohibitions were restrictions on free speech or conditions on a government benefit. But, they had adopted two premises to guide their consideration. First, if a trademark registration bar is “viewpoint-based,” it is unconstitutional. Second, the “disparagement” bar was viewpoint-based. So, the “core postulate” with which no justice disagreed was that “the government may not discriminate against speech based on the ideas or opinions it conveys.”

They followed those two premises and that core postulate to address the treatment of the FUCT mark. If the rejection of the FUCT mark was viewpoint-based and discriminated against free speech based on the ideas it conveys, that rejection would be reversed.

To get to the bottom of things, the Supremes mused etymological and rhetorical, asking, “When is expressive material ‘immoral’’’? Answering the question, they consult the dictionary and find that, according “to a standard definition,” a word is immoral when it is “inconsistent with rectitude, purity, or good morals; wicked; or vicious.”

The Court then concludes that the prohibition against immoral and scandalous marks is viewpoint-discriminatory because it allows registration of marks that accord with the viewpoint of purity or good morals or righteousness but denies registration to those marks that convey the opposite viewpoint.

This point is illustrated by a fantastic example of how the government uses the trademark registration process to push one viewpoint. The Court cites the PTO’s rejection of a number of marks that seemed to convey a drug-positive viewpoint: KO KANE and MARIJUANA COLA beverages, YOU CAN’T SPELL HEALTHCARE WITHOUT THC pain relief medication, and the slogan BONG HITS 4 JESUS. These are contrasted with the PTO’s approval of marks reflecting an anti-drug viewpoint, such as the one that branded a 1980s government education program and that you still see on the government’s (or at this point in time more likely a knock-off garmento’s) particularly distinctive t-shirts: D.A.R.E. TO RESIST DRUGS AND VIOLENCE and SAY NO TO DRUGS—REALITY IS THE BEST TRIP IN LIFE.

There is no way that this is not a viewpoint-based approach to what qualifies as a registrable U.S. trademark. The Court concludes that a prohibition against the registration of “immoral” or “scandalous” trademarks cannot stand in light of the Free Speech Clause of the First Amendment.

Justice Sonya Sotomayor pens a partial dissent, joined by Justice Breyer, that counts up all the worms that will be wiggling their way out of the can that the Supreme Court has just pried open. She notes that the court improperly collapses “immoral” with “scandalous” and opines that, given the location of the two words in the language of the text (separated, as they are, by the word “deceptive”), the language is susceptible to a reading that excises the doomed “immoral” clause and maintains the more Constitutional “scandalous” prohibition. Doing so would protect children and those who experience a visceral reaction upon hearing certain words, she states, and that would outweigh any free speech issues.

It would appear from her dissent and the position taken by Justice Alito in a separate opinion, that a rewrite of the statute to prohibit the registration of only “scandalous” trademarks would stand a fighting chance before the Court. But, for now, the PTO will be forced to register just about any mark thrown its way, regardless of content and assuming it is not generic or confusingly similar to an already registered mark. If the PTO has a swear jar, in other words, prepare for that thing to fill up mighty fast.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

Sometimes I think that it was just yesterday that I started law school, took the bar, was sworn in, and started off on what has been a career filled with twists and turns, some of which I wanted, some of which I did not. That’s probably true for most of us.

There have been so many advances in the profession (and yes, I am going to continue to call it that until I am taking a dirt nap and probably even after that). One of the things that does hearten me, at least a little, is the awakening, albeit too gradual, to the acknowledgement and existence of mental health issues within our midst. The stigma still exists, but slowly, there are little cracks in our armor of invincibility and those cracks couldn’t come a moment too soon.  They are way too late to save many lawyers who haved died by suicide over the past years, but hopefully these cracks that now reveal themselves can help save the lives of lawyers who are in distress and law students as well.

You can have all the legal tech you want, you can have all the gadgets and accoutrements that we think are important to our work and present the right “image,” whatever that may be, but if the new emphasis on lawyer mental health is indeed here for good and not just a passing fad, then saving even one life that would have previously been lost is a hopeful sign and a positive one for us.

You can’t start too early to develop an equilibrium, a sense of balance about yourself, your career, your life. Having a sense of humor about the ridiculousness of life’s situations can only help.

Many of us still have to reconcile ourselves that legal technology is here to stay, for better or worse, and that alternative methods of providing legal services are also here to stay.

One example: will we see an increase in the use of licensed legal technicians to close the access to justice gap? Washington State has licensed legal techs in domestic relations and apparently is looking at licensing other areas in the future. New Mexico is looking at the issue, while Utah allows licensed paralegal practitioners to help clients in family law, landlord tenant, and some debt collection matters.

For those considering law school and doing a cost benefit analysis, it’s entirely possible that some future lawyers may take this alternative path if the goal is to help with “people law” problems. Saddled with less debt, or none at all, licensed legal techs may well be more cost efficient, but at what cost to the lawyers who have traditionally practiced in those “bread and butter” areas?

Will there still be value in the law school education? Some lawyers have felt, and I don’t disagree, that the vast majority of their work has been shuffling papers back and forth. What will be the difference between lawyers and licensed legal techs except for the debt load and the ability to try cases, which few lawyers ever actually get to do?

The State Bar of California, while not necessarily dragging its heels, although reasonable people could differ about that, has given itself until December 31, 2020 to “…explore options to increase access through licensing of paraprofessionals, limited license legal technicians, and other paraprofessionals.” It’s Goal Four of the Bar’s updated strategic plan.

Now there’s the possibility that artificial intelligence will not only take your job, but be your boss. Oy. We already complain about bad bosses now. How would HR  handle complaints against AI bosses?

Will AI understand the concept of “take this job and shove it?” Evaluating performance will be even more of a number game than it already is. (Not enough hours billed, insufficient collections… that’s nothing new.) How would AI evaluate the non-quantifiable aspects of practicing law, the soft skills? The satisfied client, the good result that is not reflected in the numbers, the interpersonal skills that a lawyer has that lead to attracting and retaining clients? How do you “optimize humanity”? How would you even try to do it in the context of legal practice? Would there be algorithms for that? How would an algorithm model behavior for a young associate who needs coaching and mentoring? Would an algorithm receive performance bonuses? And how would an algorithm spend that bonus money? And where? And on what?

As lawyers, we push back, we challenge the status quo, we don’t just accept what is purportedly a “given.” How would we interact with a boss, whether managing partner, chief legal officer, or any other title that confers management responsibilities, who is truly non-human, and may even be “inhumane” to boot?

Will relationships matter any more? How will AI evaluate an in-house counsel who doesn’t have billable hours to meet?

The  technological revolution changing legal practice is a good thing if it makes justice more affordable for everyone. We see AI all around us, and we know it’s here to stay.

But substituting algorithms for the human touch robs us of the very personal nature of the practice of law.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

It may seem like we spend an inordinate amount of time piling on Jones Day; I mean, we’ve written eight stories (and counting) about allegations of gender bias at the firm. But the initial complaint was juicy, alleging a “fraternity culture” at the firm and unequal pay behind the firm’s notorious “black box” compensation system, and so much has been happening in the case with more women being added as named plaintiffs and/or opting into the class action that we simply had to write more stories.

On Monday, plaintiffs filed an amended complaint against the Biglaw giant. In addition to named plaintiffs Nilab Rahyar Tolton and Andrea Mazingo, who were identified in the earlier version of the complaint, three of the four anonymous Jane Doe plaintiffs have chosen to reveal themselves. Meredith Williams and Jaclyn Stahl were associates in the firm’s Irvine office, while Saira Draper worked for Jones Day in Atlanta. The decision to publicly identify themselves has been a fraught one, with Jones Day pushing for the names of the plaintiffs to become public. In a statement about the complaint, the plaintiffs say they were bolstered by others coming forward:

“It is time to do away with the stigmatization of women who challenge discrimination and harassment in their workplaces. We will not stay silent; we will not be bullied. And we are empowered by our solidarity.”

One plaintiff, Jane Doe 4, has maintained her anonymity. In previous filings, plaintiffs analogized their position to that of a whistleblower.

Additionally, plaintiffs formally picked up former New York associate, Katrina Henderson, as a named plaintiff. Another woman, Jessica Jardine Wilkes, was the first non-named plaintiff to opt-in to the lawsuit earlier this month.

The amended complaint alleges the firm’s notorious “black box” compensation system is used to pay women less than men at the firm. And, as reported by Law.com, the amended complaint brings receipts:

The seven women now on the complaint also provided details of their salaries and bonuses during their time at the firm, illustrating that their pay did not compare with the Cravath scale. They said Jones Day’s “black box” system of compensation allows the firm to depart from its stated commitment to reward top performers with pay that matches market leaders.

So, just how much does compensation at Jones Day diverge from the Cravath scale? Well, the complaint provides helpful charts to show just how underpaid plaintiffs were at Jones Day.

While all plaintiffs were paid below market all the years they were at the firm, you can see the issue gets more pronounced the more senior the associate. This isn’t surprising as the firm has historically enjoyed the ability to say it at least meets the market for first-year associates (never mind those pesky bonuses) in its recruitment efforts, and once the associate is ensconced in the firm, the salary crunch is on.

Regardless of what happens on the merits of the case, in publicly revealing their salary information, plaintiffs have dramatically increased the transparency of Jones Day. Something anyone considering working at the firm should be appreciative of.

Earlier coverage: Jones Day Hit With Explosive Gender Discrimination Case
Jones Day Facing Second Class-Action Lawsuit Over ‘Fraternity Culture’ Of The Firm
Partner Whose Behavior Features Prominently In Jones Day Gender Discrimination Lawsuit Is Out At The Firm
Jones Day Wants Gender Discrimination Plaintiffs To Reveal Themselves To The Public
Plaintiffs Throw Shade At Jones Day In Gender Discrimination Lawsuit
Gender Discrimination Lawsuit Against Jones Day Gets Yet Another Plaintiff
Gender Discrimination Lawsuit Against Jones Day Dropped — Well, One Of Them At Least
Jones Day Gender Discrimination Case Spreads To New York

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

— Kelly Barnett, a recent graduate of Golden Gate University School of Law who is a single mother, summarizing her law school journey in a Facebook post that has since gone viral after being shared on the Pantsuit Nation group page, where it has more than 82K likes.

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.