by Paul Alan Levy
Michael Farris, the chancellor of Patrick Henry College, which markets itself as a Christian college with strong ties to the home-schooling movement, recently threatened to sue gay students at the school for creating a blog and Facebook page about the difficulties they face at this institution. Farris, who at one time fancied himself as a high-powered lawyer (and still promotes himself as a speaker on legal issues), used Facebook to notify the authors of the blog that they had violated the “copyright” in the college’s name.
He threatened to use litigation both to shut down the blog and to compel the identification of its authors. Because Patrick Henry’s rules for students forbid advocacy of gay rights, exposure could have meant the bloggers’ expulsion, not to speak of obloquy from their friends and families. Apart from displaying his ignorance about the difference between copyright and trademark, Farris showed his lack of familiarity with the rudiments of trademark law, which allows bloggers to use the name of the target of their criticism to identify the pages where the criticism appears. (We handled a similar case in which Jerry Falwell learned this lesson and lost in his efforts to shut down criticism from a gay blogger)
The students reached out to Public Citizen for assistance, and before drafting a letter in response to his threat, I called Farris to inquire whether he was represented by counsel. Within a few minutes, Farris had posted on his Facebook page a retraction of this threats, saying in tortured English that “while we believe in the inappropriate nature of the use of our trademarked name, litigation is not appropriate.” (The retraction may also have been the result of an inquiry from New York Magazine).
Not appropriate indeed.