theophilosophilus's Journal: Free Speech vs. Trademarks

As a computer scientist who has crossed over to the legal field, I am greatly interested in that place where technology meets the law. In fact, interest in that subject is why I went to law school. Currently, my interest has focused on the relationship between intellectual property law and First Amendment free speech protections. Last semester, I wrote a paper for my First Amendment Rights class entitled Free Speech Post Rumsfeld v. FAIR. FAIR appears to have redefined what symbolic conduct is worthy of First Amendment protection. The relation to technology in the paper came in my discussion of whether DeCSS t-shirts could now be protected from copyright challenges under the First Amendment. I don't believe they would because FAIR imposes a "would an ordinary person understand what's being communicated" test.

Similarly, I was intrigued by the First Amendment issues presented by Google's Ban of an Anti-MoveOn.org Ad. I'm astonished that a large number of Slashdotter's could not comprehend how the policies of Google could impact free speech. Generally, this community is viciously protective of "Your Rights Online". In fact, this community has greatly influenced my stance and interest on the issue. However, Google's ban on use of trademarks is inconsistent with this community's values and the law.

Political advertising is very powerful. These ads are a means of garnering attention to the information view-holders wish to emphasize. There is an incredible problem when one viewpoint is able overemphasize its point. In fact, this danger is at the heart of campaign finance reform. I don't necessarily advocate a equality-in-advertising standpoint but I do believe that ads should not be rejected because of the target of their discussion/debate/attack. The "market place of ideas" that the Framers of the Constitution envisioned is broken when one viewpoint is prevented from being heard by a legal loophole. In this case, a blind adherence to a simplistic policy is just such a loophole. Put in terms that Slashdotters will understand, this policy is analogous to one where videos are removed from YouTube automatically (i.e. based on a mechanical algorithm rather than the merits) simply because they might violate copyright law. I realize that in legal circles a "parade of horribles" argument is mocked, however, take Google's policy to the logical conclusion. Trademark and Copyright holders can use trademark and copyright law (DMCA) to stifle criticism because Google has a easy to implement policy. Keep in mind that Google is by far the largest source of information on the internet (at least the gateway to it). Further, for a certain demographic, it may be the only source. Google will only get bigger in the future and its targets are set on control of all information beginning with advertising. Again, I am astonished that any Slashdotter would not think that Google's policy is a problem.

Finally, Google's policy does not have any basis in the law. Trademarks can be used when that is the only way of identifying the organization. The purpose of trademark law is to prevent market place confusion when there are two organizations in closely related industries operating under a similar mark. That is not the case here. Any suit by the trademark holder against any advertiser using their mark would also fail on First Amendment grounds.

In conclusion, Google is a private business and can do what ever it wants. It can filter the ads it runs and it can even filter the search results it displays. Google's reasoning for censoring information can be political, economic, convenience or whatever. The major point that Slashdotters have missed is that Google's market position has given it unmitigated power over speech. There are no Constitutional limitations on Google's censorship of speech. It is up to the market place to provide the checks and balances in this situation. Slashdotters are ignorant of their duty to be skeptical in this situation. Whether this be blind devotion to a corporation or a blindness caused by the political actors under this situation's facts I dare not say.