Tag: Law

What’s in a name? To Gallaudet University, quite a lot. 

When the Gallaudet chapter of Students for Justice in Palestine protested the war in Gaza, Gallaudet moved swiftly to silence the group, neutering the SJP chapter’s social media presence and sending a campus-wide email condemning the group’s rhetoric. While they initially succeeded, swift action by FIRE and the social media company Meta ensured that free speech — and proper application of trademark law — won the day.

The leadup to last spring’s commencement ceremonies was a tense time at Gallaudet. Gallaudet SJP put up stickers across campus containing the phrase “from the river to the sea.” Many of these placements could fairly be considered vandalism by the university — and thus not protected by First Amendment principles. But rather than focus on where the stickers were placed, or where written materials should be placed, Gallaudet took a more troubling approach.

On May 22, the university released a video “community statement . . . affirming our values and addressing recent concerns.” In it, Provost Khadijat Rashid and President Roberta Cordano noted that the phrase “from the river to the sea” is “associated with rhetoric that promotes violence and hatred” and is “considered hate speech.” 

Instead of specifying that the underlying speech is protected but the methods used (i.e., unauthorized stickering on university property) in communicating that speech were unacceptable, Gallaudet conflated the two, stating, “Antisemitism has no place at Gallaudet. These acts of vandalism are not protected speech.” 

As FIRE has thoroughly explained, simply repeating the “river to the sea” slogan during a peaceful protest in the United States most certainly is protected speech, regardless of the dispute over whether it is also antisemitic. Gallaudet, which tells its community members it believes in “the principles of freedom of expression and open dialogue without fear of censorship or retaliation,” therefore promises to protect such speech in its own policies. Yet after threatening protected speech, Gallaudet’s leaders went on a curious digression:

We also want to address a source of confusion. A social media account [on Instagram] with the handle @sjpgallaudet uses the university’s name in its profile. This account does not represent a university-sanctioned student organization. The use of “Gallaudet” in this context is unauthorized, and the university filed a trademark infringement complaint [with Meta]. The social media handle has now been removed.

Trademark law (and corresponding Meta guidance) does allow parties with marks — such as distinctive names, logos, or even sounds, textures, or colors — to protect their creative works from infringers. But Gallaudet was stretching trademark law far beyond its bounds. In order to bring a trademark claim, rights holders generally need to show that other parties using their marks will cause confusion among consumers as to who is generating the content. In other words, Gallaudet can protect itself against would-be infringers who want to use its name to fool folks into thinking the infringer represents Gallaudet in some way. Posers beware, says the law.

But few if any social media users would think that a student group — especially one with a clear advocacy posture like SJP — represents a university just because the group references the name of the school where it operates. If someone actually exists who would assume Gallaudet officially sponsors the @sjpgallaudet Instagram handle, they would surely be dissuaded by the prominent message on the account saying: “GALLAUDET UNIVERSITY SHUTS DOWN STUDENTS FOR JUSTICE.” No likelihood of confusion, no trademark infringement.

Intellectual property rights cannot and should not be used to make unpopular speech go away.

FIRE made this simple point to Gallaudet in a June 3 letter, while also taking the time to carefully explain that “from the river to the sea” is protected by the university’s free speech promises. We received no reply, just crickets.

Fortunately, Meta proved significantly more helpful. On July 29, FIRE contacted Meta, urging the company to reinstate the @sjpgallaudet account. On Aug. 26, Meta wrote to FIRE explaining that, upon further review, its legal teams had determined that the account does not violate trademark guidelines, and reinstated it. Meta deserves praise in this case for thoroughly reassessing its earlier trademark determination and changing its decision accordingly.

But Gallaudet, for its part, refuses to acknowledge its mistake or hostility toward student expression. This creates the troubling possibility that the university will again try to misuse trademark law to bully groups it doesn’t like, even if Meta is onto its shenanigans. 

This is not the only time we’ve seen universities try to use their names to knock down perceived opponents. In July, FIRE blogged about a similar case involving Purdue University, where the independent student newspaper The Exponent published an editorial saying it would remove the names and images of pro-Palestinian activists from its website over concerns that the federal government would use them in its efforts targeting what the government called “pro-jihadist” speech. 

In response, Purdue’s administration went on the offensive. The university told the publication, run by Purdue students since 1889, to stop using the name “Purdue” in its website address. Purdue also said it would stop circulating the paper and end preferential parking for its staff. As we noted at the time, Purdue’s decision made a mockery of trademark law and threatened independent journalism. 

Purdue and Gallaudet surely won’t be the last higher-learning institutions to invoke trademarks to silence dissent. But FIRE will continue to call on universities to protect their marks in a way that respects the First Amendment. 

Names are valuable to organizations, who have a right to protect their brands from abuse and safeguard consumers, donors, and passersby from confusion. Yet intellectual property rights cannot and should not be used to make unpopular speech go away.