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Want to know what is on our minds? Find blog posts written here, by the City Club staff, members, and partners. Every week you can find a new edition of #FreeSpeech in the News — a collection of related stories, commentary, and opinions on free speech in the 21st century that’s making the news. You’ll also find takes on current events, past forums, and issues surrounding Northeast Ohio. Read on for all things City Club.

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Monday, March 16, 2020

#FREESPEECH in the News March 16, 2020

Bliss Davis, Content and Programming Coordinator, The City Club of Cleveland

#FREESPEECH in the News March 16, 2020

As the Citadel of Free Speech here in Cleveland, we work to protect and promote the basis of our democracy by sharing related stories, commentary, and opinions on free speech in the 21st century. Here's what's making the news – and what you should know about – in the past week.

1.) Do You Have a First Amendment Right to a Slayer-Themed License Plate?

The Pacific Legal Foundation (PLF), a public interest law firm, has filed a lawsuit against state DMV director Steve Gordon alleging his department's license plate policy violates the First Amendment's free speech protections. The DMV, they are arguing, is using a dangerously expansive definition of "government speech" to unconstitutionally censor motorists' expression.

In 2018, the state DMV rejected 30,000 of the roughly 249,000 personal plate applications they received. PLF is representing five people who've similarly had their plate applications rejected. That includes Paul Ogilvie, an army veteran, who wanted to combine his military nickname 'OG' with childhood nickname 'Woolf' to make an 'OGWOOLF' license plate. The DMV rejected this for supposedly being offensive.

This is not the first time California's personal plate regulations have come under attack. Last year PLF sued the department on behalf of university professor Jon Kotler who'd likewise had his application for a personalized plate rejected.

2.) Nike Appeals Fleet Feet Injunction on Basis of Free Speech

Fleet Feet, Inc. is a national running equipment retail store chain and owner of the trademarks CHANGE EVERYTHING and RUNNING CHANGES EVERYTHING for retail sporting goods stores and athletic apparel and related goods and services.

According to the company website, the company espouses the core belief that “running changes lives,” and thus transforms everything else. Nike, Inc. adopted “Sport Changes Everything” in its 2019 advertising campaign highlighting youth, athletes with miraculous physical abilities in spite of obstacles, and the difference that sports can make in transforming lives. There was also a “Sport Changes Everything, Chicago-Style” commercial.

Fleet Feet took notice of Nike’s campaign and filed a trademark infringement lawsuit seeking damages and an injunction, based in large part on a theory of reverse likelihood of confusion. Reverse confusion occurs when consumers believe that a prior user of a mark is somehow connected to a later user, even though the later user is the interloper.

3.) ISPs Claim Data Collection is a Matter of Free Speech

Four internet service providers (ISPs) are claiming that the state of Maine is violating their right to free speech by forcing them to ask their customers’ permission to sell their browser history, The Register reports.

Those ISPs, ACA Connects, CTIA, NCTA, and USTelecom, are suing Maine’s attorney general, Aaron Frey, and the chair and commissions of Maine’s Public Utilities Commission because a statute passed in 2019 “imposes unprecedented and unduly burdensome restrictions on ISPs’, and only ISPs’, protected speech.” The tighter focus on this is how the statute restricts how those ISPs communicate with their customers, and how those restrictions aren’t catered to protecting consumers’ privacy.

The ISPs claim that this statute is discrimination, and an excessive burden since other states haven’t had to do the same. Additionally, they feel it’s unfair that other large companies like Google and Facebook are allowed to sell consumers’ data with lesser restrictions, The Register says.

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