Posts by Jeff Trexler

Neither women nor property should be treated as mere objects -- that's the takeaway from two seemingly unrelated developments in fashion law last week.

Saint Laurent's Ad Adjustment

In the latest of a series of regulatory enforcement efforts directed at fashion brands, French advertising authorities published a ruling against a December ad campaign by Saint Laurent and initiated new action against two more Saint Laurent ads, one of whose images is posted above.

The ruling highlights the legal and ethical concern at the heart of these enforcement efforts: as provided in the French agency's "Image and Respect of the Person" guidelines, "Advertising shall not reduce human persons, and in particular women, to the function of objects." This anti-objectification rule reflects Kant's influential ethical standard known as the categorical imperative, which rests on a fundamental distinction between person (in Latin, persona) and object (res). In brief, a person is to be treated in ways that reflect human dignity and autonomy, not reduced merely to a useful object.

For French regulators, as for many complaining about fashion ads, marketing that depicts women as "hypersexualized" or thin are fundamentally at odds with the ethical distinction between persona and object; sexuality is seen as reducing women to their physical utility, which images of thinness are said to coerce women to feel bad about themselves and to follow an unhealthy lifestyle.

It's worth noting, though, that the regulators' view of sexuality and human proportion are not universally held. For some, expressing agency, freedom, and power through sexual expression is a quintessentially human (not to mention feminist act). Likewise, freedom and agency in regard to one's body takes shape in a wide range of approaches to bodily modification, from ostensibly extreme forms of adornment and plastic surgery to the full spectrum of dietary choices and body types. Does rejecting these perspectives as a matter of law deprive their adherents of their fundamental human dignity and autonomy? I'll leave that for you to decide.

Counterfeits and civil forfeiture

Even as French regulators were delving into the distinction between person and object, Justice Clarence Thomas issued an intriguing concurrence in a denial of certiorari that also explored the relation between persona and res. The case: Leonard v. Texas, in which the appellant questioned the constitutionality of civil forfeiture statutes.

Noting that the Court was declining to hear the case on procedural grounds, Justice Thomas went on to set forth several reasons for concluding that the time had come for civil forfeiture to end. The core problem, Justice Thomas argued, lies in the distinction between in personam and in rem jurisdiction. In this instance, taking property in an in rem action with no regard to the individual's rights in connection with that property shows a nihilistic disregard for due process; by reducing a person's property merely to its alleged utility in committing a crime, we dehumanize the person as well.

The future of civil forfeiture laws is a matter of serious interest for fashion anti-counterfeiting efforts, inasmuch as the seizure of fake goods through proceedings directly against the property has long been a standard means of getting counterfeit merch off the market. This is true at both the state and federal levels, with Texas as a telling case in point: depending on the amount, trademark counterfeiting can qualify as either a first- or second-degree felony, thus making the goods subject to forfeiture under the state's Code of Criminal Procedure.

Justice Thomas's contention that civil forfeiture laws are a historical aberration that do not fit within contemporary constitutional due process standards is a conclusion that in its broadest contours has become rather popular since John Oliver featured the practice on Last Week Tonight. Can - and should - this tactic be saved?

Justice Thomas's examination of the history of civil forfeiture provides grounds for taking a more tailored approach. Two observations are particularly important. First, Justice Thomas observes that centuries ago civil forfeiture was limited mainly to customs and piracy, in which the perpetrators were typically overseas and outside the personal jurisdiction of the court. In addition, he notes that traditional civil forfeiture targeted the means by the crime was accomplished, not the proceeds from committing it.

While intellectual property pirates are in some ways qualitatively different from the oceanic predators of long ago, anti-counterfeiting civil forfeiture addresses similar policy concerns. With foreign-made goods and online sales the perpetrators are often anonymous and well outside the reach of courts, let alone law enforcement. Likewise, the focus of enforcement is not on seizing revenue but getting the goods off the market, typically by destroying them. The sort of abuses highlighted by both Justice Thomas and John Oliver -- e.g., police officers using asset seizure for self-enrichment at the expense of tourists and the poor -- rarely if ever appear.

If the Court does take a civil forfeiture case, the optimal approach could take take civil forfeiture back to its roots with a narrow standard tailored to situations such as fashion piracy. As an added safeguard to discourage abuse by officers on a thinly disguised shopping expedition, the law could require expert assessment as to whether the goods are indeed counterfeit, along with mandatory destruction of all seized fakes.

The greater significance of these controversies, though, lies in what they reveal about a deeper tension with fashion law and ethics: our imperfect and often conflicting attempts to delineate the boundary between person and object.