Yesterday, AFLC filed a notice of appeal in the United States Court of Appeals for the Federal Circuit in response to the Trademark Trial & Appeal Board’s (TTAB) affirmance of the denial of the “Stop Islamisation of America” or “SIOA” trademark application, which was sought by anti-sharia advocates Pamela Geller and Robert Spencer and their organization, the Freedom Defense Initiative (FDI). In a nutshell, the United States Patent and Trademark Office (USPTO) rejected the application, ruling that the trademark disparaged Muslims and linked them to terrorism. (You can read the whole story here.)
The Federal Circuit Court of Appeals is a highly-specialized federal court in Washington, D.C., that was established to hear, among others, patent/trademark appeals. At this point, it is difficult to determine how the Federal Circuit will treat this case. Generally, the TTAB, which is the last administrative appeal at the USPTO, rubber stamps the director, but in our case, the briefs and oral argument were so one-sided in our favor that there was hope for a favorable ruling. However, that did not happen, but it was no surprise: most judges are quite hostile when these types of cases are argued. Moreover, and perhaps surprisingly, the most hostile judges are typically Republican appointees. For example, in AFLC’s victories in the lower federal courts in New York and Detroit, the judges were liberal appointees, and they ruled on the side of granting First Amendment protection to our clients’ speech. In this case, given the law at work, it should be an easy victory for our clients. But, we shall wait and see.
To explain further, in one case where AFLC had won in the trial court after a full evidentiary hearing at which the transit authority admitted during cross examination that our clients’ advertisement did not convey an impermissible “political” message, a three-judge panel in the U.S. Court of Appeals for the Sixth Circuit comprised of 2/3 George W. Bush appointees reversed, holding that the advertisement, “Fatwa on your head? Leaving Islam? Contact www.refugefromislam.com,” was not a permissible “religious” ad but, instead, was impermissibly “political” (the rules were meant to preclude political campaign ads from Detroit/Dearborn buses — not what we call in the law “political speech,” which of course is the most protected of all speech under the First Amendment) because “Fatwa” and sharia are political not religious matters. It was a remarkable and somewhat startling admission.
So, in the Sixth Circuit, sharia is now political, and to the USPTO, it is religious. In sum, the federal courts are a laboratory of the studied application of incoherence where words carry no meaning but are used arbitrarily to protect the politically correct mantra that Muslims and Islam constitute a special class that stands above criticism that is otherwise protected speech under the First Amendment. In short, blasphemy laws are alive and well—we just don’t want to admit it.