Guest Post by Samuel F. Ernst[1]
As Dennis reported, the Supreme Court has granted certiorari in the case of Vidal v. Elster to determine if the PTO violated Steve Elster’s First Amendment right to free speech when it declined to federally register his trademark TRUMP TOO SMALL in connection with T-shirts. The PTO had denied registration under 15 U.S.C. § 1052(c), which provides that a mark cannot be registered if it “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” In February, the Federal Circuit held that this provision is unconstitutional as applied to TRUMP TOO SMALL, a mark intended to criticize defeated former president Donald Trump’s failed policies and certain diminutive physical features.[2] The Federal Circuit held that, as applied to marks commenting on a public figure, “section 2(c) involves content-based discrimination that is not justified by either a compelling or substantial government interest.”[3] The question presented before the Supreme Court is “[w]hether the refusal to register a mark under Section 1052(c) violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.”
Under the Supreme Court’s precedent in Matal v. Tam and Iancu v. Brunetti, the Federal Circuit’s decision was almost certainly correct.[4] Unlike the provisions at issue in those cases, which barred the registration of disparaging, immoral, and scandalous marks, section 1052(c) does not discriminate based on the viewpoint expressed; it bars registration of a famous person’s name whether the mark criticizes praises or is neutral about that person. But the provision does discriminate based on content, because it bars registration of marks based on their subject matter. The Supreme Court has held that “a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.”[5] Even though viewpoint discrimination “is a more blatant and egregious form of content discrimination,” both viewpoint discrimination and content-based discrimination are subject to strict scrutiny.[6] Even if we view trademarks as purely commercial speech – an issue the Supreme Court has never decided – laws burdening such speech are subject to at least the intermediate scrutiny of Central Hudson, which is the level of scrutiny the Federal Circuit applied in finding section 1052(c) unconstitutional as applied to TRUMP TOO SMALL.
To survive the Central Hudson test, section 1052(c) must advance a substantial government interest and be narrowly tailored to serve that interest.[7] The government argues that the provision advances a government interest in protecting the right of publicity of public figures from having their names used in trademarks without their consent. However, even if the government has a substantial interest in protecting the state right of publicity, the provision is not narrowly tailored to serve that interest. This is because every state’s right of publicity law incorporates some sort of defense to protect First Amendment interests,[8] and “recogniz[es] that the right of publicity cannot shield public figures from criticism.”[9] But the PTO takes no countervailing interests into account before denying registration to a mark under Section 1052(c). The PTO merely inquires into whether “the public would recognize and understand the mark as identifying a particular living individual” and whether the record contains the famous person’s consent to register the mark.[10] Accordingly, section 1052(c) is unconstitutionally overbroad because it burdens speech that the right of publicity would not burden. The provision is therefore far more extensive than necessary to serve the government’s purported interest and is facially unconstitutional.
A peculiar aspect of the Supreme Court’s First Amendment jurisprudence in the context of trademark registration is that a trademark registrant is not only asserting a right to free speech, but also to obtain an exclusionary right to prevent others from using the same speech in commerce (at least to the extent it would cause consumer confusion). In other words, if we are concerned with burdening Elster’s right to proclaim that Trump is too small, it is odd to remedy that concern by giving him a right to prevent others from saying the same thing. Section 1052(c) is not equipped to deal with this larger concern with marks containing political commentary because it only prevents the registration of marks by persons other than the named political figure, and only if they contain the name of that political figure. Outside of this narrow context, the Lanham Act can do great harm to free political speech because it allows for the federal registration of all manner of marks containing pollical commentary. Anyone can register a mark containing political commentary so long as it does not name the political figure without her consent. And politicians are free to register marks making political commentary whether or not they contain their own names. For example, the Trump Organization has a federal registration for the mark MAKE AMERICA GREAT AGAIN.[11] This grant of a federal registration does more harm to free speech than the denial of any registration would, because it allows the trademark holder to prevent others from making the same political comment in commerce to the extent it would result in a likelihood of confusion (or to the extent they are unwilling to incur the expense of defending against a federal lawsuit).
This raises a broader critique of the Supreme Court’s rigid approach to the First Amendment. The Court deals in inflexible categories of scrutiny that focus solely on the rights of the speaker (in these cases, the trademark registrant), without considering how the absolute protection of those rights might affect the speech rights of others. For example, in Boy Scouts of America v. Dale, the Court decided that the First Amendment rights of the Boy Scouts were violated by a New Jersey law requiring it to rehire a gay scoutmaster it had fired.[12] But the Court did not consider how the Boy Scouts’ assertion of their First Amendment rights affected the rights of the fired scoutmaster or of other New Jersey employees to publicly express their sexual orientation without fear of being fired. And in Citizens United, the Court vindicated the First Amendment rights of private corporations to support political candidates without considering how the resulting flood of corporate political propaganda could drown out the speech of less powerful private citizens.[13] The trademark registration cases put this issue in stark relief, because in protecting the rights of the trademark registrant to say scandalous, immoral, disparaging, or political things, the Court utterly fails to consider the ways in which the resulting rights of exclusion might prevent other people from saying the very same things. This was the point Justice Breyer made in his Brunetti concurrence, where he argued that “[t]he First Amendment is not the Tax Code.”[14] Rather than focusing on inflexible, outcome-determinative categories, he urged the Court to adopt a balancing test: “I would ask whether the regulation at issue works speech-related harm that is out of proportion to its justifications.”[15] Even under such a test, section 1052(c) would likely not survive, because it is far broader than its purported justification to protect the right of publicity. But such an approach would at least allow the Supreme Court to consider in these trademark registration cases that it is not only protecting a right to speak, but a right to exclude others from speaking.
Several prominent scholars have argued that the PTO could prevent the registration of political commentary marks under the “failure to function” doctrine.[16] The Lanham Act’s definition of a “trademark” requires that a trademark must be “used by a person to identify and distinguish that person’s goods from those of others and to indicate the source of the goods, even if that source is generally unknown.”[17] The argument is that political commentary marks are not perceived by the public as source indicators, but, rather, as political commentary. Under the failure to function doctrine, the PTO has denied registration to EVERYBODY VS RACISM and ONCE A MARINE, ALWAYS A MARINE.[18] Denying registration to political commentary marks under this doctrine might not violate the First Amendment because it is clearly a legitimate trademark policy to regulate interstate commerce. However, this issue is not before the Supreme Court in the Elster case because failure to function was not a basis for the denial of registration of TRUMP TOO SMALL in the PTO. In any event, the constitutionality of section 1052(c) cannot be saved by the failure to function doctrine because that has never been the government’s asserted justification for the provision, and because in that context too, the provision would be unconstitutionally overbroad insofar as it would bar the registration of marks containing the names of famous persons that do operate as source indicators.
While predicting the outcome of a Supreme Court case is always hazardous, it appears that if the Court is to follow its own First Amendment precedent, it must either declare section 1052(c) facially unconstitutional or formulate a test for the PTO to apply similar to the First Amendment defenses to the right of publicity, such that a substantial number of the statute’s applications do not violate free speech.
To read a deeper exploration of these issues, please see my recent article on the Elster case recently published in the Brooklyn Law Review: Trump Really Is Too Small: The Right to Trademark Political Commentary.
= = =
[1] Professor of Law, Golden Gate University School of Law.
[2] In re Elster, 26 F.4th 1328 (Fed. Cir. 2022).
[3] Id. at 1331.
[4] See Matal v. Tam, 137 S. Ct. 1744 (2017) (holding that the Lanham Act’s bar on the registration of disparaging marks is facially unconstitutional); Iancu v. Brunetti, 139 S. Ct. 2294 (2019) (holding that the Lanham Act’s bar on the registration of immoral and scandalous marks is facially unconstitutional).
[5] Reed v. Town of Gilbert, 576 U.S. 155 (2015).
[6] Id. at 168.
[7] Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of NY, 447 U.S. 557, 566 (1980).
[8] Jennifer E. Rothman, The Right of Publicity: Privacy Reimagined for a Public World 145 (2018) (“At least five balancing approaches have been applied to evaluate First Amendment defenses in right of publicity cases.”).
[9] In re Elster, 26 F.4th at 1338.
[10] In re Nieves & Nieves L.L.C., 113 U.S.P.Q.2d 1629 (T.T.A.B. 2015).
[11] Registration No. 4773272.
[12] Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
[13] Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
[14] Brunetti, 139 S. Ct. at 2304 (Breyer, J., concurring in part).
[15] Id. at 2305.
[16] See Alexandra J. Robert, Trademark Failure to Function, 104 Iowa L. Rev. 1977 (2019); Lisa Ramsey, Free Speech Challenges to Trademark Law After Matal v. Tam, 56 Hous. L. Rev. 401 (2018); Lisa Ramsey, A Free Speech Right to Trademark Protection?, 106 Trademark Rep. 797, 836 (2016).
[17] 15 U.S.C. § 1127.
[18] In re Go & Assocs., LLC, 2022 WL 1421542 (T.T.A.B. 2022); In re Eagle Crest, 96 U.S.P.Q.2d at 1227 (T.T.A.B. 2010).
Deflection. No one knows what someone is going to be like until after they hire them.
Barr is part of the problem with the establishment from both sides.
Of course that was a deflection from Greg.
Further, as I noted, his own buried link IN that deflection does not support his assertion.
link to patentlyo.com
While Greg tends to be polite, he is simply not honest in his dialogues.
Pres. Truman rather famously had a sign on his desk proclaiming that “the buck stops here,” but I gather from you that Pres. Truman was wrong. The president is free to pass the buck whenever and to whomever might suit his convenience?
If Barr was part of the problem, then Trump was—ipso facto—also part of the problem. Barr had only as much power as Trump gave him. Incidentally, when Epstein died in custody, did Trump hold Barr accountable and demand Barr’s resignation? Why not?
In any event, it is hardly as if Barr is the only alumnus of the Trump administration who came away from the experience with the impression was not qualified or suited for the office. Gen. Kelly, Gen. Mattis, Amb. Bolton, Sec. Tillerson, Vice Pres. Pence, Gen. McMaster, Atty. Gen. Barr, and many other of Trump’s own appointees have publicly expressed their opposition to the re-election of Pres. Trump.
Are all of these Republicans untrustworthy? If not, then surely their collective opinion should inform our thinking, regardless of Barr’s individual lack of credibility. If yes, then what does it say about Trump’s judgment that he repeatedly appointed so many untrustworthy people to senior roles in his administration?
Lol. Bless your heart! Yes, they are all part of the establishment republican side. They hate Trump more than you do! It took him a while to learn that. And for many of us to do so as well. W never said an unkind work about Obama while he was in office. As soon as Trump was in, attack mode. Why is that? Because both parties work together. Your side just has not figured it out yet.
Tell me, why do we STILL not know who Epstein’s clients were? Where is that information? Epstein died under Barr’s watch, and no info has been released. Why not? If Trump were on that list, we would have had it by now.
But thanks for admitting that Biden has given Garland carte blanche to get Trump. I mean, he did say they will use every legal (hah!) means necessary to stop Trump from running again.
“Show me the man, I will find the crime.”
The OMB-TDS is certainly exacerbated by the entrenched political machine.
But that is NOT the same as you may indicate as “Greg’s side” not knowing this.
Went looking for some Tam discussions and fell upon this:
link to patentlyo.com
The Professor here has paid no heed to anything that he does not already believe.
This is what passes for legal scholarship these days?
As anyone who has actually read the Dale decision knows, Dale was a *volunteer* leader in the Boy Scouts (an assistant scoutmaster, not a scoutmaster as stated by the author). That fact explains why neither the term “fired” nor the term “hired” – the terms used by the author to characterize what transpired in the case of Dale – appear anywhere in the Dale decision: you can’t get fired from, or hired for, a volunteer position.
This gives the lie to the author’s statement that “But the Court did not consider how the Boy Scouts’ assertion of their First Amendment rights affected the rights of the fired scoutmaster or of other New Jersey employees to publicly express their [censored] without fear of being fired”: there was never an employer/employee relationship, and thus what was at issue was not potential discrimination in the workplace as a result of a person exercise his first amendment free speech rights, but rather the freedom of association, a matter on which the NJ court’s interpretation of the NJ public accommodations statute at issue overreached.
As plainly stated in the decision, the Boy Scouts of America was a private organization that held the view that permitting gay volunteer leaders would be contrary to the organization’s purpose, and the court concluded that forcing the organization to accept openly gay scout leaders thereby run afoul of the first amendment’s protection of freedom of association. Contrary to the author’s assertion, nothing about the decision precluded Dale from speaking out on any topic, or in the author’s term “express[ing]” Dale’s [censored] (a term which likewise is unclear – does “express” here mean saying “I’m gay” or does it mean engaging in [censored] acts?)
Truly an impressive display of legal scholarship, citation and thought. The students at Golden Gate University School of Law can rest assured that they’re getting a top-notch legal education from the finest legal minds.
I think you’re over-reacting here and the facts of Dale are more nuanced than you suggest. Dale was a 5-4 decision, for those keeping track.
Keep making irrelevant statements that don’t address, let alone refute, the facts, Malcolm. I’m sure you’re a great lawyer…in your own mind. Maybe you’re even a graduate of GGU law school.
“you can’t get fired from, or hired for, a volunteer position”
This sounds like something that only a person who never managed volunteers or who never worked as a volunteer would say. Or maybe something that a lawyer trying to make an extremely pedantic or hyper technical point might say if they wanted to kick up dust and/or distract others from the relevant issues.
It certainly is a legal point.
It is hardly a pedantic or hyper technical one though.
In the context of this discussion it certainly is pedantic.
You know what’s far less pedantic and more relevant: the Boy Scouts reversed their discriminatory policy (the entire reason they had any case at all) not long after their “victory”.
In total contrast, The Slants soared to success in the music world as a direct … oh wait … LOL
No.
No it is not.
You rather missed what he said above.
If you want pedantic in the legal sense, BOTH of your comments at 5.2.1.1 would qualify.
You being you…
It is not “pedantic” to take note of the rule of a case, even when the facts of the case are obsolete. The rule is the part of the case that perdures despite the passage of time and circumstances away from the facts to which the rule had been applied.
Post
“The difference between perdure and endure is that perdure has a connotation of continuing to last forever, or at least until death, while endure has a connotation of only continuing to last until some specified time.”
link to english.stackexchange.com
As for the hidden link (of OMB-TDS flavor), while I do not recall where Hilary’s server was (or where her destruction of information therein occurred), how about Biden’s garage…?
testing, filter refuses to let my comment through
I need a better understanding of the assertion of, “However, even if the government has a substantial interest in protecting the state right of publicity, the provision is not narrowly tailored to serve that interest.”
This seems to be the weakest part of the author’s chain of reasoning.
Presuming that the Government’s [substantial] interest is valid, the section of 15 U.S.C. § 1052(c), which provides that a mark cannot be registered if it “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” appears to be eminently and specifically narrowly (and well)-tailored.
This very much veers away from the Tam and Brunetti cases for the very point at which the code elicits its particular requirement.
Further, conflating a State by State right of publicity aspect (with some sort of defense to protect First Amendment interests) is a bit of a non-sequitur, as the point of the item being narrowly tailored is
a) not strictly right of publicity AND
b) the speaker is not in anyway constrained under the Trademark law from actually having his speech (of criticism) against the public figure shielded.
Tam’s and Brunetti’s “burdened speech” is both different in degree and kind, and is also differently legislated in the law’s narrow tailoring.
>This seems to be the weakest part of the author’s chain of reasoning.
Agreed. This is the key point.
+1
But, given the Court’s recent performances, I should probably get to work on filing a bunch of ITU’s on “Taylor Swift-ly” marks. There is a potential once-in-a-lifetime gold rush possibility here….
>[substantial] interest
It would be interesting if the Court also distinguished Tam on the grounds that amorphous groups-of-people (e.g., east Asians) don’t have rights, whereas here, there is a particular individual / group of individuals whose rights must also be considered in the Central Hudson case. Noteworthy, this would extend the central holdings of both Citizens United and Dale in non-politically charged case.
“this would extend the central holdings of both Citizens United”
What do you believe is the “central holding” of Citizens United (one of the worst Supreme Court decisions ever written) and how would this “distinction” you refer to extend that holding?
“ “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” appears to be eminently and specifically narrowly (and well)-tailored.”
Does the statute text you quoted line up with legal definition of “the right of publicity”, including necessary First Amendment considerations? It doesn’t “appear” to do so “eminently” (the term “right of publicity” is not even mentioned) but maybe you can explain your reasoning to everyone.
You are missing the point vis a vis any “lining up,” as such is not required.
Read all the way through my comment.
The assertion of yours that I cited follows your own words: “Presuming that the Government’s [substantial] interest is valid,…” (exact quote). The “interest” in question must be “protecting the state right of publicity” as that was the only “substantial” interest under discussion (otherwise your comment makes no sense).
So once again: explain to everyone why you believe the quoted statute is “eminently” “narrowly tailored” to protect that right. Or just admit you were throwing random words up against the wall because that’s the best you can do.
Try again — my “own words” are quite clear.
If you are having difficulty with those plain words, just say so.
“If you are having difficulty with”
*click*
Yawn.
Ah yes, the return of the mindless “click-yawn.”
I will take that reply as being in the affirmative that the problem in understanding is with you.
Let’s have a little fun and revisit Malcolm’s (oh so sad and oh so typical
Accuse Others Of That Which Malcolm Does (“you were throwing random words up against the wall”)
link to definitions.uslegal.com
It is well recognized that Malcolm ‘throws words against the wall’ in his random wailings about First Amendment, and here his “desire” and clear overstatement about “necessary” 1A considerations simply does not match up with reality.
Dolt 45’s prison cell gonna be too small for his lard a$$.
The beginning of the end…again.
For better or worse, I have to agree with PatentMom here. I am skeptical that one can empanel a jury in Florida that will unanimously vote to convict Donald Trump.
The legal system is not going to remove Donald Trump from the U.S. political scene. The only ways that he exits the scene are by definitive electoral repudiation or natural causes.
Reminds me of Hilary — in more ways than one.
Let’s just skip over the unprecedented indictment of ones’ political opponent to remove them from the running. I hope you like bananas.
Trump was impeached the first time for far less.
If Trump weren’t running, no indictment would have been sought. Rachel Maddow admitted as much when she wondered whether Trump could be convinced not to run in exchange for a deal.
And you left out unnatural causes, which scares me. If they are willing to indict a former president for a document dust-up, what else might they do?
As for electoral repudiation, he got 74 million votes in 2020. That is more than Obama got the first time (69 million). That is about 10 million more than Hillary in 2016. Quite a big jump.
Meh, those millions (which do NOT include me), are merely MAGAts and Deplorables.
“unprecedented indictment”
Literally nothing shouts out “I am a mentally challenged huffer of cable news” louder than this ridiculous talking point. But then again this a commenter who would probably knock his grandmother down to unzip Daddy Drumpfer’s fly.
meh,
As it turns out, the first impeachment WAS based on “D” party
L
I
E
S
and weaponized government entities.
Sure, for the jaundiced, this may not be “unprecedented,” but your
s
e
x
u
a
l
innuendo is very much out of place.
Has a former president been indicted before? If not, it is without precedent.
Ad hominem is so you.
Other presidents have been impeached (one recently, notwithstanding any definition of what the word “is” is):
link to en.wikipedia.org
“ Has a former president been indicted before? If not, it is without precedent.”
Sure, double down on the inanity even after the inanity has been pointed out. And then cry your crocodile tears about “vulgarity” while you defend a notorious assaulter of women. We’re used to s c u m b a g s like you now. You are old miserable News and I’d line my bird’s cage with you except she doesn’t like the smell.
So am I. See, we agree!
What is so funny to me is that the left continues the nonsensical “we want Trump to be the nominee cuz we can beat him” while simultaneously making new law (to help Jean Carroll), not revealing laws (Manhattan DA who failed to list what he was relying upon), or indicting Trump for something many former P and VPs could also have been indicted for but weren’t. Does that sound like a side confident they could beat him?
Cognitive dissonance in the extreme.
Did some conservative woman dump you? Because your hatred is hyperbolic even for you.
What former U.S. president has been indicted by the DOJ before, much less for a document handling issue? What other U.S. President has had his DOJ indict his most likely political opponent?
Try answering the questions this time instead of deflecting with your ad hominem nonsense.
Dennis, why is The Prophet able to direct such a vulgar comment against anyone, much less a woman, in your comment section?
Double standard?
That’s the whole game of “The Prophet” and the Woke. Their game is to smear you as much as possible if you disagree with them. The idea is to get you to stop commenting.
Lol – we see how well that works.
Let’s just skip over the unprecedented indictment of ones’ political opponent to remove them from the running. I hope you like bananas.
For the record, France prosecuted Nicolas Sarkozy and South Korea prosecuted Park Geun-hye. When you hear “France” or “Korea,” do you think “banana republic”? I know that I do not.
Also, how common is it—in banana republics—that the ex-leader’s own attorney general is willing to explain that the ex-leader is unambiguously guilty? This is not like any “banana republic” that I have ever known.
Perhaps the reason why such indictments are so unprecedented is that the degree of brazen lawbreaking by our nation’s chief executive is also unprecedented. I am happy to hope that this precedent will never be revisited.
Not to mention Nixon would surely have been indicted had he not been pardoned by Ford as part of a deal for Nixon’s resignation.
But there really is little point in arguing/debating/discussing any of this stuff with the cr e e ps, lizards and snail people who repeat these cable news scripts on behalf of the lowest family of lowlifes who ever crawled out of the humanity’s sewer.
Better to just mock them, scorn them, and laugh.
If it were anyone else but Malcolm, I would ascribe his infantile “don’t listen” position as to:
link to open.spotify.com
But this is Malcolm, and the better fit is simply that Malcolm lacks the cognitive ability to engage.
He is, after all, the “Trump of the Left” (TM).
(yes, that last line is a jest — or is that a gist…)
… as it turns out (for others than Malcolm), Dr. Lindsay has an extensive piece on the subject:
link to newdiscourses.com
Are we speaking about the US or other countries? You just made my point.
Epstein died under Bill Barr’s watch. He is not trustworthy.
What laws did Trump break that Biden, Obama, Clinton (both) and Pence did not?
Bill Barr… is not trustworthy.
Who appointed Barr to the office of Attorney General. Perhaps that person’s judgment should be questioned?
Your buried Drum link is antithetical to your stated “blame Trump” message.
What laws did Trump break that Biden, Obama, Clinton (both) and Pence did not?
18 U.S.C. §793(d)
Notice that “willfully.” If you cast your mind back to crim law, you will remember that “willfully” is the highest level of mes rea—the hardest for the prosecution to prove. In order to violate this statutory provision, it is not enough merely to have documents and fail to return them. You must willfully refuse to return them in order to incur criminal liability here.
When Biden, Clinton, Obama, and Pence were found to be in possession of national security documents, they were asked for the return of the documents and surrendered them back to the government. When Trump was asked for the documents, he directed members of his staff to move them around his home while the government agents searched, in order to prevent the documents from being recovered.
In other words, there is evidence of willfulness in Trump’s actions that is not present in the actions of Clinton, Biden, Obama, or Pence. A prosecutor asking “do I have a case?” against Biden, Clinton, Obama, or Pence would have to admit to himself or herself that s/he cannot prove the mens rea element, whereas the same prosecutor can prove the mens rea element for Trump.
If you have not committed all of the elements of a crime, then you have not committed the crime. Biden, Clinton, Obama, and Pence cannot be said to have committed all of the elements of §793(d), but Trump can. That is the crime that Trump has committed that the others have not. I hope that helps.
The words “rush to judgement” echo in Greg’s incomplete analysis and incorrect summation.
His assertion falls flat for the very reason that he provides (“Notice that “willfully.” If you cast your mind back to crim law, you will remember that “willfully” is the highest level of mes rea—the hardest for the prosecution to prove.”
His analysis falters at ONLY looking at one element that he has applied this to: the element of ‘willfully not complying with a return.’
This is not the extent to which the willfulness applies to though.
This (emphasis added): “any document [etc] relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation…”
This is not only UNprovable, Trump has been on record that this cannot be reached.
One would have to PROVE otherwise.
Will not happen.
Anon is not a lawyer, so he cannot be expected to know this, but far from being “UNprovable,” the scienter element (i.e., “which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation…”) is actually the easiest bit for the prosecution to prove. The scienter element can be proved just by showing that the documents were marked “classified,” “secret,” or “top secret.” United States v. Morison, 844 F.2d 1057, 1074 (4th Cir. 1988).
Ah, my erstwhile pal with shifty historical pseudonyms pipes up – in his classic way of being wrong – with:
“ is actually the easiest bit for the prosecution to prove. The scienter element can be proved just by showing that the documents were marked “classified,” “secret,” or “top secret.” United States v. Morison, 844 F.2d 1057, 1074 (4th Cir. 1988).” – right after making an accusation that is simply untrue (that I am not an attorney).
You are just not going to impress anyone with your desire to make me coin with your choices of how you post, Shifty.
“Let’s just skip over the unprecedented indictment of ones’ political opponent to remove them from the running.”
Being indicted is keeping him from running? Huh, that’s news to me. And everybody else.
But you do you.
And don’t uncheck that “bill my credit card every month!” box on Dolt 45’s campaign donation form.
Lulz
Indeed. If the indictment were intended to stop Trump from running, it is not only a failure, but a singularly predictable failure at that.
“T”rump – nonsense hidden message from the propaganda rag Intelligencer, attempting to be a Hillary apologist (and 1gn0ring Biden’s altogether.
“Learning” about the “R” from these types of sources is the absolute worst thing that Greg could be doing (or signaling others to do).
As for electoral repudiation, he got 74 million votes in 2020.
I gather that this is meant to suggest that Donald Trump will not exit the U.S. political stage because of a decisive electoral repudiation. For whatever it is worth, I largely agree with this. I think that—at his age—he is more likely to disappear from the scene on account of death or disability than on account of definitive defeat at the polls.
That said, if Trump loses to Biden a second time and if Trump chooses to run again in 2028, then the definitive electoral repudiation option would be far more likely. I am not predicting that either of those “if”s will come to pass. I am merely making the prediction that if both of them should arrive, then even the GOP base will likely lose its taste for Trump-ism.
I am hoping and praying he is the 2024 nominee.
And the 2028 nominee too!!!!
Was talking to a neutral party about that the other day — and would agree that the Far Left WANT the sh_tsh0w of Trump involved.
I chalk it up to the pervasive OMB-TDS affliction.
Sorry, cannot share your hope here. I thought that Donald Trump would be easy to beat in 2016. I learned the hard way how wrong I was.
Trump barely won in 2016 and then barely lost in 2020. A few thousand votes in two or three states could have totally changed the outcome in either of those elections. When Trump is on the ballot, the results are so close that it comes down to luck.
I do not care to test America’s luck again. I have no control over whom the GOP chooses to nominate, but I will be hoping that they go with a different nominee.*
* Incidentally, I think that Democrats’ chance for victory is actually better in a world in which the GOP nominates someone else, because then Trump will run as a third party candidate and split the vote. When Roosevelt ran against Taft, Wilson was able to pick up not only most of the swing states like NY and IL, but even reliable GOP states like MA and KS. The same would apply today, if Trump were to choose to punish the GOP for nominating DeSantis by running as the “MAGA party” candidate.
“ I have no control over whom the GOP chooses to nominate, but I will be hoping that they go with a different nominee.”
Dream on.
His base is shrinking because they’re old and dying. And new young voters are overwhelmingly against him and the Republikkkan party.
Channeling Malcolm again I see….
(if you haven’t picked it up yet, that is NOT a good thing)
Dream on.
If you mean that my hopes are not very likely to come true, then I agree. Donald Trump seems much the most likely candidate to win the nomination.
An interesting “first principle” from Greg and his latest hidden signaling.
This though condemns his actions as he appears to be asserting that he very much “has not f00led himself” and is purposefully being disingenuous in his advancement of Sprint Left ideologies.
So am I. See, we agree!
What is so funny to me is that the left continues the nonsensical “we want Trump to be the nominee cuz we can beat him” while simultaneously making new law (to help Jean Carroll), not revealing laws (Manhattan DA who failed to list what he was relying upon), or indicting Trump for something many former P and VPs could also have been indicted for but weren’t. Does that sound like a side confident they could beat him?
Cognitive dissonance in the extreme.