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 logo. This relentless attack should trouble anyone who cares about the freedoms of speech and association.
In a filing Friday, we’re 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 declared that any officer who saw any club member “wearing his patch” could “literally take the jacket right off his back.” Officers did just that, confiscating jackets, belts, shirts, and other items displaying all or part of the logo from club members and supporters — even though they were not charged with any crime.
Representing a club member, the ACLU 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’s rulings also schooled the government in bedrock principles of trademark and First Amendment law, calling the government’s theory “creative to a fault.” 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’s 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’s why the Campbell’s Soup Company couldn’t prevent Andy Warhol from painting images of Campbell’s Soup cans and Mattel can’t prohibit Danish-Norwegian dance-pop group Aqua from singing “Barbie Girl” or stop an artist from photographing Barbie dolls. Likewise, the government could not legally prevent an individual from expressing support for the Mongols Motorcycle Club — or opposition to abuse of power — 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’t prohibit people from wearing shirts or buttons supporting the Democratic Party, Black Lives Matter, or the National Rifle Association — and it can’t 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’s 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’s 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’s 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’s 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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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, 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’s 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 “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The 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.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ 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 “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s 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’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ 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,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” 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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Free Speech
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News & CommentaryDec 2024
Free Speech
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Minnesota Supreme CourtNov 2024
Free Speech
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This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.