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 . This relentless attack should trouble anyone who cares about the freedoms of speech and association.
In a filing Friday, we鈥檙e 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 that any officer who saw any club member 鈥渨earing his patch鈥� could 鈥渓iterally take the jacket right off his back.鈥� Officers did just that, confiscating jackets, belts, shirts, and other items displaying all or part of the logo from club members and supporters 鈥� even though they were not charged with any crime.
Representing a club member, the 老澳门开奖结果 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鈥檚 also schooled the government in bedrock principles of trademark and First Amendment law, calling the government鈥檚 theory 鈥渃reative to a fault.鈥� 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鈥檚 trademark.
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鈥檚 why the Campbell鈥檚 Soup Company couldn鈥檛 prevent Andy Warhol from painting images of Campbell鈥檚 Soup cans and Mattel can鈥檛 prohibit Danish-Norwegian dance-pop group Aqua from or stop an artist from . Likewise, the government could not legally prevent an individual from expressing support for the Mongols Motorcycle Club 鈥� or opposition to abuse of power 鈥� 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鈥檛 prohibit people from wearing shirts or buttons supporting the Democratic Party, Black Lives Matter, or the National Rifle Association 鈥� and it can鈥檛 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鈥檚 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鈥檚 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鈥檚 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鈥檚 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.
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WASHINGTON 鈥� Today, the 老澳门开奖结果, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok鈥檚 challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will 鈥渟hutter one of America鈥檚 most popular speech platforms the day before a presidential inauguration.鈥� 鈥淭he Constitution imposes an extraordinarily high bar on this kind of mass censorship,鈥漵aid Patrick Toomey, deputy director of 老澳门开奖结果鈥檚 National Security Project. 鈥淭he Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.鈥� The brief argues that the D.C. Circuit failed to fully address the law鈥檚 profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court鈥檚 decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users鈥� First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government鈥檚 ban on TikTok as a vindication of users鈥� First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign 鈥減ropaganda.鈥� But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its 鈥渕otivating ideology鈥� or 鈥減erspective,鈥� and the government has not come close to meeting that bar here. 鈥淭he government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,鈥� said David Greene, civil liberties director at EFF. 鈥淭he Supreme Court should put the TikTok ban on hold while it considers the DC Circuit鈥檚 erroneous ruling.鈥� Finally, the brief underscores that the government can鈥檛 impose this type of sweeping ban unless it鈥檚 necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government鈥檚 invocation of 鈥渘ational security鈥� as a trump card and failed to hold the government to its burden. 鈥淩estricting citizens鈥� access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,鈥� said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. 鈥淚t would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.鈥� You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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