Louisiana Gives Up Fight To Stop Anti-Jindal, Pro-Obamacare Billboard

[meegbear]

Source: TalkingPointsMemo.com

Louisiana has dropped its lawsuit against the liberal group MoveOn.org, which had aimed to remove the group's billboard that was critical of Gov. Bobby Jindal (R) for not expanding Medicaid under Obamacare.

MoveOn announced Tuesday that the lawsuit had been dropped and that it would keep the billboard up through at least November.

“This billboard in Louisiana will be a constant reminder to Gov. Jindal and Republican officials in the state that we are not backing down until they stop blocking Medicaid," Anna Galland, who heads the group's civic action division, said in a statement.

Lt. Gov. Jay Dardenne (R) had pursued the lawsuit on the state's behalf, arguing that the billboard's text -- a parody of a state tourism slogan -- infringed on its trademark.

Read more: http://talkingpointsmemo.com/livewire/moveon-louisiana-billboard-lawsuit-dropped

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From the had pursued link ...

The sign states: "LOU!SIANA Pick your passion! But hope you don't love your health. Gov. Jindal's denying Medicaid to 242,000 people."

Dardenne alleged that the sign was confusing because "Pick Your Passion" is one of Louisiana's official tourism slogans and it is registered as a trade service by the state.

[Laelth]

1. k&r for exposure. n/t

-Laelth

[Louisiana1976]

2. Excellent post. K&R

[azureblue]

3. and that means Move On

can make the state pay for its lawyers. Too bad MO can't make Bobby pay out of his own pocket.

[Jim Lane]

9. Why would MoveOn be able to get its attorneys' fees?

The general rule in American litigation is that each party bears its own legal costs. Even if you win, you aren't routinely granted attorneys' fees.

Louisiana, because of its heritage from French law rather than English law, has some differences from the 49 other states. Is this one of them? Is there a specific Louisiana statute or practice that makes it an exception to the general rule?

[JoeyT]

11. I thought if it could be proven the costs were incurred

because the litigation was completely frivolous and vindictive the plaintiff could be on the hook. e.g. SLAPP suits

[Jim Lane]

13. Yes, if it's frivolous, but that's a tough standard to meet

The vast majority of unsuccessful arguments are nevertheless not held to be frivolous.

MoveOn was oversimplifying by giving the impression that the only issue in the case was whether the First Amendment protects criticism of public officials. The fact is that Louisiana does have a registered service mark. A billboard is speech within the First Amendment, but the First Amendment doesn't protect improper use of someone else's registered service mark.

Thus, the issue was whether MoveOn's use of Louisiana's mark constituted an infringement. My gut reaction (without being familiar with the law in this area) is that there's enough of a basis for the State's position that, even if it had ultimately failed, it wouldn't be held frivolous.

[Sgent]

16. Copyright law

is a loser pays carve out of the general rule. So is constitutional law when facing a government entity. Moveon can collect on either cause of action.

[Jim Lane]

18. I don't think those apply

As I read the news report, this is not a copyright issue, but trademark/service mark -- like copyright, a form of intellectual property, but not the same. Is there a special attorneys' fees rule for service mark litigation?

I'm not aware of any general principle that says a successful constitutional claim against a government entity entitles one to attorneys' fees. You may be thinking of section 1983 actions, brought for deprivation of civil rights by someone acting under color of law, but this case would not qualify as a 1983 action. There's also the Equal Access to Justice Act, for cases that, like this one, are in federal court, but it provides only for an award of fees against the federal government, and then only when the government's position was not "substantially justified."

OTOH, MoveOn was fundraising off this idiotic move by Jindal, and so probably came out ahead financially even without a fee award.

[Sgent]

19. I'm not sure

why a section 1983 request would be invalid -- the district court found that issuing an injunction would violate moveon.org's civil rights and that the filing of the lawsuit was an attempt to suppress political speech.

I agree upon further review that the the copyright issues wouldn't apply.

[Jim Lane]

20. You don't have a 1983 action unless your rights are violated.

Bringing a lawsuit that seeks, unsuccessfully, to take down your billboard doesn't actually take down your billboard.

You say there was a finding "that the filing of the lawsuit was an attempt to suppress political speech." Well, an attempt to suppress political speech is not by itself a violation of rights, if the speech runs afoul of some other rule (trademark, copyright, defamation, non-disclosure agreement, etc.). If there was a finding that the state's position was not merely wrong, but utterly indefensible, and so had no colorable basis but was purely an attempt to suppress speech, then you wouldn't need to get into 1983; such a frivolous suit would be a Rule 11 violation and the opposing party would be entitled to attorneys' fees on that basis.

I did some extremely minimal research and found cases in which fees are awarded to a prevailing plaintiff in a trademark case, along with the infringer's profits (because obviously almost all such cases involve businesses selling phony Coach handbags or the like). I don't know if the statute authorizing such awards would apply to a prevailing defendant.

[packman]

4. All I can say to Jindal and Louisiana Reps is-

[URL=.html][IMG][/IMG][/URL]

[bvar22]

5. These billboards SHOULD be blanketing every state that refused the FREE Medicaid Expansion.

[font size=4]When RICH people get sick,
they go to the doctor.
You could too,
if you had a Democratic Governor.
How many will die?

[/font]

[LuvNewcastle]

7. Agreed.

They should be all over the place. One would think that the Democratic Party in all those states would be putting them up. There are many reasons why red states are red, and it isn't all the fault of the GOP and Fox News. In too many states, like mine, the Democrats are nearly indistinguishable from the Republicans, so the people never really hear an opposing viewpoint. You can't win if you don't try.

[ChiciB1]

6. Funny, No Repukes Screaming About The Huge Billboards Here In

Florida! I've seen them everywhere in many smaller communities. Says something like "Don't Let Obamacare Kill You!" Not sure of exact wording, but when I go up around Inverness/Ocala area I've seen quite a few!

Nasty stuff!

[rocktivity]

8. CUE THE VONAGE THEME, you all!

Now can pick your passion in Louisiana as long as being poor and sick isn't one of them!


rocktivity

[mdm646]

10. More help??

Now if MoveOn would just help us remove Jindal we would appreciate it. What an embarrassment to the state.

[marble falls]

12. Wish we could help, but we got Rick Perry, Louis Gohmert, Ted Cruz, Greg Abbott ........

[Sunlei]

14. republicans will go their local ban against billboards, as Rs control all local zoning &neighborhood

as Rs control most all local zoning & neighborhood associations.

Wish we could get neighborhood associations 'over-regulation' and local zoning 'over regulation', vs personal freedoms in front of the Supreme Courts.

[NutmegYankee]

17. Easiest way to avoid the neighborhood association police state...

Don't live in a neighborhood with one.

[Nye Bevan]

15. Good. Moveon has First Amendment rights despite not being a "natural person".

This case should cause pause for thought in those who supporting amending the Constitution to reserve its protections to "natural persons".