17
The Day I Killed Freedom of Expression
Kembrew McLeod
I have a confession to make. On October 16, 2004, I killed freedom of expression. This wasn’t murder—it was more like involuntary manslaughter, a death caused by negligence. Just to be clear, I’m not speaking in metaphors. According to the US government, freedom of expression is officially dead: so says the US Patent and Trademark Office (USPTO).
What, exactly, does the USPTO have to do with freedom of expression? On January 6, 1998, this government agency, which decides what can be patented and trademarked, granted me ownership of the phrase “freedom of expression.” This trademark was assigned its own serial number (#2127381), and it was approved the same year Fox News became the steward of another iconic phrase: “fair and balanced” (#2213427).
Today, the oddly named “Live/Dead Indicator” on the USPTO’s website announces that my trademark is “DEAD” (the word is unambiguously spelled entirely in caps, no less). How does one kill a trademark? Before I answer that question, I should explain why I trademarked freedom of expression in the first place, why I brought it to life as an intellectual property. It was a joke, a prank, though a very serious one.
Over the years I have witnessed the insidious ways our overreaching copyright clearance culture creates unnecessary obstacles for teachers, researchers, artists, and other creators. This is something I have written about in my book Freedom of Expression®: Resistance and Repression in the Age of Intellectual Property. The book’s second chapter also shares its title with a documentary I co-produced, Copyright Criminals, which aired on PBS’s Independent Lens series in 2010.
It was this sort of thing that compelled me to trademark Freedom of Expression® over ten years ago. When I submitted my application, it was a kind of dare. Even though I obviously hoped that freedom of expression could not be privatized, the bureaucracy that processed my application believed otherwise. At first the USPTO informed me that parts of my application were “not acceptable”—but not because the thought of cordoning off “freedom of expression” was troubling.
No one at the USPTO seemed to be morally, socially, or politically unsettled by this notion. Instead, a civil servant lawyer explained to me that it was unacceptable because I had filled out the application incorrectly: “the mark is not typed entirely in capital letters.” The USPTO seems to love capitalization.
Six months after dutifully filing yet another piece of paperwork, I received a certificate in the mail informing me that I owned FREEDOM OF EXPRESSION. To be clear, this did not mean that I could regulate the use of freedom of expression in all contexts, because my trademark covered only certain areas (it fell within Class 16 on the “International Schedule of Goods and Services,” which covers, in short, printed matter). However, it did give me a monopoly over the phrase in certain contexts, which was funny enough for me, in a black humor kind of way.
If, for instance, the American Civil Liberties Union (ACLU) decided to publish a magazine titled Freedom of Expression, I could have conceivably blocked its distribution with a court injunction. I never did sue anyone, certainly not the ACLU, for flagrantly using freedom of expression without permission, though there were a couple instances when I strategically targeted an “infringer” with a Cease and Desist letter.
In 2003, I paid an attorney to go after AT&T when the telecommunications giant used the phrase—without my consent!—in a newspaper advertisement. The New York Times broke my silly story in an article that began with the sentence, “Freedom of Expression, it turns out, may not be for everyone.” Although AT&T refused to respond formally to the Cease and Desist letter, I made my point. The news media became my megaphone, and the story has since spread virally, especially on the Internet. I suspect the story was so popular because it contained such a glaring, absurd internal contradiction. The sentence “Did you hear about the guy who trademarked freedom of expression?” performs my critique about the privatization of culture with little verbiage.
You may be wondering, how exactly did I kill Freedom of Expression®? In order to keep a trademark registration alive, the USPTO states that during the fifth year of a trademark’s life, the owner must file more paperwork. “Failure to file the Section 8 Declaration,” the guidelines state, “results in the cancellation of the registration.” Or, to use that jarring, capitalized legal-bureaucratic term, it is DEAD.
I forgot to do so, which resulted in the death of my beloved trademark. I had always planned, in concluding my little performance art piece, to faux-magnanimously return freedom of expression to the public domain, but I didn’t think this would occur involuntarily. Nor did I imagine its passing would go undetected by me for such a long time. No fanfare, not even a form letter stating, “Dear Mr. McLeod, we regret to inform you that your right to freedom of expression has been terminated.”
Now I must live with the fact that I’m no Swiftian satirist, or even just a prankster with a good idea. Rather, I’m the incompetent jerk who carelessly let freedom of expression die.
Freedom of Expression®
R. I. P.
January 6, 1998–October 16, 2004
Interview with the Robo-Prankster-Prof, Kembrew McLeod
MARILYN DELAURE. How did you first get involved in pranking and culture jamming?
KEMBREW MCLEOD. I think it was partially rooted in my personality, which was influenced a bit by my parents. I remember I had a really sick sense of humor, and when I was eleven or twelve, I would make it a game to hide my little Sesame Street Ernie doll in places like a cabinet with a knife stuck through it—or hanging from the shower head. Fortunately, my parents had a good enough sense of humor, and it was a pre-Columbine massacre era, so they didn’t medicate me. And then in high school, I was a theater kid. My pranking side was further encouraged by friends in my theater troupe in Virginia Beach, Virginia. For instance, one of my theater friends was disabled, and she had to walk on crutches, so we would do these street or mall theater kind of events where we would follow behind her and say really outrageous things. Not mean things, but still really outrageous things about her disability. And of course she was fully in on it, and she had a good sense of humor, so we wanted to see how other people would react when they saw what we were doing.
Moving on to college, I guess I can say I had an education in pranks at James Madison University. I came across a group of friends much like my friends in high school who had similar sensibilities, and who also had this impulse to provoke people in public situations in order to see their responses. For a class project, I did my first big prank, which was a campaign to change the school’s mascot—which was a bulldog in a purple crown and cape—to something really ridiculous and silly: a pink three-eyed pig with antlers. This prank was directly inspired by a couple of political events happening around the same time. One was a Supreme Court ruling that asserted it was a First Amendment right to burn American flags. And in 1991, we invaded Iraq for the first time, and there were many American flags around campus at that time. It was very jingoistic. So the school mascot prank was inspired by my curiosity about what happens when you threaten a symbol that people are so invested in, like a flag or, in this case, the holy school mascot. I thought that maybe some people might get bent out of shape, but I had no idea that it would get as out of hand as it did. I still remember the school paper at the height of the “Duke Dog Controversy,” which ran it as the lead story above a story that read, “Tragedy at Gunpoint: Find Out How a Former Grad Dealt with Being Shot.” That was the first time I realized how easy it is to manipulate media. I was an undergraduate sociology major who had no practical experience in the world of media, and no PR background or anything, but this story made the front page of regional papers, and ABC and NBC local news affiliates covered our protest. The joke was that, in order to show how serious we were about changing the mascot, dozens of us married ourselves to bananas in a mass wedding ceremony. We planted many clues to indicate that it was a prank, but a lot of people took it seriously, and it became a scandal on campus. And that news coverage eventually ended up on CNN as part of a larger story about controversies in the 1990s around racist mascots like the Braves, the Indians, and the Redskins. CNN somehow found a way to integrate the three-eyed pig with antlers into the story, which completely torpedoed the gravity of that news story. So I realized if I could create these ripple effects, and I had very little experience with media, imagine what companies and hired PR firms do on a daily basis with a lot more money and expertise at their disposal. That was a really eye-opener: after that, I looked at media and culture differently.
MARILYN DELAURE. Tell me about your best culture jamming intervention.
KEMBREW MCLEOD. I think the best one was my “freedom of expression” prank. In 1997, when I was a graduate student, I applied to trademark “freedom of expression” through the US Patent and Trademark office. I was worried that the USPTO was going to see through it as obviously a joke, or they might just find it appalling that someone would want to trademark “freedom of expression.” But the only problem that bureaucrats who received my application had with it was that I didn’t write “FREEDOM OF EXPRESSION” in all capital letters in the application. So I resubmitted the application, and they gave me “freedom of expression.” A few years later, though, my trademark died because I didn’t file a “Section 8 form” which, if you grew up watching M*A*S*H, you would know is a term for someone who is crazy—so it was beautiful.
KEMBREW MCLEOD. Yeah, sometimes I am really bad with paperwork, so I forgot to file it five years into the trademark’s lifetime. A colleague of mine, Ted Striphas, was researching online one day, and he noticed that my trademark had been canceled. And the legal term for that is it is “dead.” So there is an actual government website that says, “Freedom of expression is dead.”
MARILYN DELAURE. I’m curious—now that they killed it, could someone else trademark it?
KEMBREW MCLEOD. Yes someone could. It’s public domain, but someone could recapture it.
MARILYN DELAURE. Don’t tell Fox News that.
KEMBREW MCLEOD. Yeah, exactly. The reason I think it was so successful is because a good prank is like a meme that self-replicates. I threatened to sue AT&T over using “freedom of expression” without my permission in an advertisement that they ran in 2003. That brief story does a lot of cultural and intellectual work, because it gets people thinking about what it means to live in an age where something like “freedom of expression” can be privately owned and regulated. And I also think that a lot of successful pranks and culture jamming interventions have a storytelling component. The ones that are most successful are the ones that capture people’s imaginations, and either inspire someone to do their own stunt or tell someone else about, for instance, the fact that someone trademarked “freedom of expression.”
MARILYN DELAURE. What was your least successful jam?
KEMBREW MCLEOD. I think my least successful prank, but probably my most notorious one, was when Bill Clinton came to stump for Hillary Clinton when she was campaigning for the Democratic nomination in 2007. (This was when she was the front-runner, before Obama’s victory in the 2008 Iowa Caucuses.) So I decided to interrupt Clinton’s speech dressed as robot demanding that he apologize to Sister Souljah. Sister Souljah was a young black activist. She is now a writer, a successful novelist. But at the time she was a black activist associated with the hip-hop group Public Enemy. In 1992, she had been asked by a reporter in the wake of the Los Angeles riots about why the truck driver, Reginald Denny, got dragged from his truck and beaten by the mob. She replied with a long, thoughtful analysis that included her critique of Los Angeles city officials and the mayor, noting that black people have been killing black people on the streets on a daily basis and government officials didn’t do anything about it. And there is one full quote that Bill Clinton took out of context where she said, “If black people are killing black people every day, why not kill a white person?” But that was like the money shot, the money quote that Bill Clinton used to attack her at Jesse Jackson’s gathering of the Rainbow Coalition in 1992. And it was a clear strategic move to position himself to the right of the perceived position of the Democratic Party, so he would be successful in a larger national campaign. Well, that incident always bothered me. In some ways I saw Bill Clinton’s actions as a prank, as I define it—a public intervention or provocation that’s meant to stir debate or convince someone of a particular position. So he used deception much like a lot of pranksters, but this was much more of what I would call an “evil prank,” a prank that was intellectually dishonest.
What became known as “the Sister Souljah moment” had bothered me for many years, and so when I heard that Bill Clinton was speaking on the University of Iowa campus just a block away from my office, I had the idea to dress as a robot. The reason I wanted to dress as a robot and critique him for the Sister Souljah moment was because I didn’t want to be like a screechy screaming chest-beating activist. I don’t like the kind of aggressive activism, which can be really macho and reify particular gendered normative behaviors. I thought it’d be more interesting and funny if I dressed as a robot. (The Des Moines Register coined “Roboprofessor,” which I’ve continued to use because I just love that term.) The night of the Clinton prank, I set up a website that explained why I did it, and I had little explanatory fliers that I threw up in the air so that journalists would catch them. But what I found was that by picking such an obscure topic—something that most people didn’t remember, or at least misremembered—it required way too much backstory to be effective in getting my point across. What ended up happening in a lot of news reports was a further distortion of the original incident. CNN’s anchor actually said, “Sistah Souljah was a young black activist who called for a ‘kill white people week,’ which Bill Clinton called racist.” And that’s an exact quote. It would’ve taken a CNN intern with access to Google thirty seconds to debunk that statement. So with the Clinton prank, I feel like I did more harm than good in some ways.
Four years later, when another presidential candidate, Michelle Bachman, came to town, I was very cognizant of the fact that my message about Sister Souljah and Bill Clinton was lost in translation. Effective pranks need to be clear in some way; even if they’re evoking confusion and chaos at some moments, the message needs to be clear. So I called out Michelle Bachman on her homophobia, and dressed as a robot and outed Roboprofessor as a gay robot. When she got off her campaign bus, I followed her into the Hamburg Inn, a local campaign stop, and I said “not only are you a homophobe, you’re a robo-phobe.” I knew that the words “gay robot” would be the hook that attracted reporters.
One of the strategic moves I made was getting a friend to take a cheap HD camera and document the event. I then edited the footage down to sixty seconds and uploaded it to YouTube. Later that night, MSNBC ran a news story about it with the full minute of footage that my friend shot. So that prank was much more planned out, in terms of the clarity of the message. A lot of the supporters of Michelle Bachman who were in the restaurant just started screaming at me and shoving me; they were not happy with me, and some started a chant, “Go back in the closet, go back in the closet.” And I was like [in robotic voice] “I cannot help myself, I am a gay robot, I am programmed to do this.” Anyway, I quickly left after that because I had no interest in making the Hamburg employees’ jobs that much worse, and because there were also Occupy protesters in the restaurant screaming at the Bachman supporters, so the gay robot was almost like a side show. But I knew that the gay robot would be a perfect hook that could carry the story far and wide, and it did: it fanned out internationally, strangely enough. By critiquing Bachman on something that was a prominent part of her political profile, I knew that even if people didn’t agree with me, at least my argument was legible.
MARILYN DELAURE. In your book Freedom of Expression (2007) you write, “We live in a consumer culture, which sometimes obscures the fact that we first and foremost live in a democratic society” (169). Do your pranks work to attack the former [the consumer culture] in order to assert the latter, and more broadly, do you think culture jamming is a vital tool for promoting and protecting democracy?
KEMBREW MCLEOD. In many ways, pranking and culture jamming are twisted versions of participatory democracy in action. Another way of thinking about pranking and culture jamming is that pranking—unlike a formal theater experience in which the audience is separated from the performers by stage lights and the stage itself—pranking blurs the line between audience and observer. It invites people to engage in the spectacles that pranksters create. Even if they are just observing something that briefly turns the world upside down, it holds the potential for the observer to see the world, even very briefly, from a new perspective. Observing satire and irony in action requires some sort of critical thinking because, when an ironic joke is launched, it requires the observer to think about what the teller or performer does not mean. It requires some form of critical thinking. So yeah, I sort of see pranking as a form of participatory democracy. A really weird version of it, sure, but one that encourages people to stop being bystanders, engage with their daily lives, and deviate from their daily routines. Even if it’s just for a moment, that can be productive.
References
McLeod, Kembrew. 2007. Freedom of Expression®: Resistance and Repression in the Age of Intellectual Property. Minneapolis: University of Minnesota Press.