Trademark and copyright laws don’t give an organization the right to silence critics. But what constitutes silencing versus the simple act of enforcing one’s branding can be a matter of debate — as in the federal lawsuit brought by The Church of Jesus Christ of Latter-day Saints against the long-running “Mormon Stories” podcast and its parent organization.

In a recent episode of The Salt Lake Tribune’s “Mormon Land” podcast, Cara Gagliano, senior attorney with the Electronic Frontier Foundation, explains how the law works, and why she thinks it’s on the side of “Mormon Stories” host John Dehlin. Indeed, the nonprofit where she works recently submitted an amicus brief calling on the courts to toss the suit.

[A week after this podcast interview, the church filed a court document arguing its lawsuit is not about silencing a critic. Read The Tribune story about that filing here.]

Mormon historian and writer Kristine Haglund, meanwhile, makes the case that the most important judge might not be the one in robes but the wider public.

Here are edited excerpts from that conversation:

What are the legal arguments that you see as being at the core of this case?

Gagliano • The church’s complaint includes both trademark and copyright claims. But really the core of it is trademark.

A trademark is basically anything that tells consumers who puts out a product. It’s usually a name or a logo, but it could also be a sound, you know, like the little NBC chime, or a color like Barbie Pink. The purpose of trademark law isn’t about rewarding trademark owners; it’s about consumer protection.

So, for example, imagine that you know you like the taste of cola that’s made by Acme Corp. but not any other cola you’ve ever tried. So it’s useful to you if you can be confident that any can of cola with Acme printed on it will be made by Acme Corp. and have that taste that you like.

Because that’s the purpose of trademark law, determining a trademark infringement claim, like the church has brought here, has two parts:

First, you ask, does the plaintiff own a valid trademark?

Second, you don’t just look at whether the defendant is using the same mark or a similar mark. You have to instead show that a substantial number of consumers are likely to be confused about the connection between the two.

Both of those elements are really in play in the case here. John Dehlin and the Open Stories Foundation are making arguments both that there’s no valid trademark here, that really Mormon is a generic term, and that there’s no likelihood of confusion here under various tests.

Cara, your group and the American Civil Liberties Union have filed amicus briefs in support of John Dehlin and “Mormon Stories.” Why do you argue the church’s lawsuit should be dismissed?

Gagliano • In our amicus brief, we focus especially on telling the court that when it looks at the likelihood of confusion, it should really be not applying the usual test that you’d see in a normal commercial trademark case.

Instead, the court should apply a test that other courts in different jurisdictions have used for cases with higher First Amendment interests involved. That test is called the Rogers test. It’s a little simplified, more objective and one that’s easier for the court to use now, where we are really early in the case, to get rid of bad claims at an early stage.

In our experience representing people who are facing trademark threats, a lot of times, even if you know a trademark claim is really weak, the person who’s threatened will still back down because defending a lawsuit is really expensive.

What weight does the word “Mormon” carry for you?

Haglund • I mostly talk about Mormonism in academic contexts, and there it’s a neutral descriptor. I do think it’s really ironic in that it seems like the church might have had a stronger case in this trademark dispute if it were 10, 20 years ago and we were still running the “I’m a Mormon” campaign, opposed to after the president of the church admonished members to stop using the term for themselves.

Do you get confused by the use of the word “Mormon” when you read different outlets discussing the church, wondering which voices might represent the institution versus independent voices?

Haglund • No. And I don’t think anyone really does. I don’t think that anyone who listened to John Dehlin for five minutes would really be confused and think that this is an official podcast of the church.

I don’t know if this case is sort of reflexive protection of the term, or if it’s that the church is really struggling to figure out what to do as its members encounter unfriendly information online.

What about the legal argument? How does then-President Russell M. Nelson’s vehement disavowal of the word “Mormon” play into the legal arguments?

Gagliano • It has a very significant effect.

We’ll see if the court agrees, but I know the defendants have asserted in what are called counterclaims that actually the church abandoned these trademarks. That’s a legal doctrine within trademark law. For something to be working as a trademark, you need to be continuously using it.

And here, this is honestly one of the clearest cases of abandonment that I’ve ever seen, where the church over a period of years systematically was changing the names of its website, its apps, even the Mormon Tabernacle Choir.

That’s a problem for them.

What about from a historical standpoint? How has the term, its usage and its connotation evolved through the years, including in your lifetime?

Haglund • It starts out as a fairly neutral term. Users are generally trying to distinguish between our church, which called itself the Church of Christ when it was first organized, and Alexander Campbell’s group just up the street that was also calling itself the Church of Christ.

Certainly people used it pejoratively. But it was also used by people who were just trying to make the distinction between groups. And Joseph Smith and Brigham Young both use it sometimes. Sometimes it gets scare quotes around it, but it’s used.

Then Elder Russell Nelson [as an apostle] gives a talk in General Conference in April 1990, saying we should use the full name of the church. And six months later, Elder Gordon B. Hinckley [a fellow apostle] gets up and says, “Elder Nelson has given us wise counsel on this topic. I commend you to read his talk.”

But then, with his sort of pragmatic attunement to public relations and how this is going to be seen in the wider world, Hinckley says it just won’t work. So what we need to do is make sure that when people hear Mormon, they have good associations with the word. Mormon should be “more good.”

I’ve tried to think of another example of such direct disagreement over the General Conference pulpit in my lifetime, and I can’t. Then when Elder Nelson becomes President Nelson, he goes back to this thing that has clearly bothered him for decades and that he really feels strongly is something the church should change.

What would be gained if the church prevailed in this case? What would be lost?

Gagliano • A win for the church in this case would serve as big ammunition for them, something really powerful to point to when they are trying to get other people to change names or stop using the word “Mormon” or whatever without having to take them to court.

Haglund • A legal win might actually be a big cultural loss for the church. We are in a moment when people generally, young people in particular, are skeptical of institutions, big institutions, and being Goliath [in this federal case] is not a good look for the church, particularly when it’s about silencing critics.

We’ve had an outsized amount of publicity recently, more than ever in my lifetime, for sure. We’re just having some growing pains trying to figure out how to deal with that, how to walk graciously on a national and maybe international media stage. We have this odd sort of self-consciousness. We think that we always have to make sure that the church is being portrayed in a good light. We have this anxiety about making sure that everyone has a good opinion of us. It feels a little bit like middle school where you’re just very concerned with your image.

We’ll get past it. But a mature and healthy organization can worry less about its public image and just go about doing good.

When “The Book of Mormon” musical came out, the church took out ads in the playbill, saying, “You’ve seen the play; now read the book,” encouraging audience members to read that book of Latter-day Saint scripture. Do you think that is a better approach for the church to take?

Haglund • That might have been church public affairs’ finest moment — to take ourselves a little bit less seriously and be a little bit witty and lighthearted about the fact that, you know, we didn’t get to choose our name. But we can make what we want of the nickname, right? I mean, you can appropriate a nickname that someone has given you and turn it into something that you feel good about. I think we could do that.

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