People are noting everywhere (here and here) that the Supreme Court is going to hear arguments next week in the case of the Top Two Primary.

But Kenny Pearce, that “The Evangelical libertarian philosopher” formally of the Palouse and currently of Philadelphia, has the best breakdown.

Read the entire thing here (its long), but here’s a good part of his analysis:

A man with very ugly teeth publicly endorses Listerine. He does this with no malice; perhaps he is trying to argue that his bad teeth are not his fault. The man goes so far as to buy television ads in support of Listerine (featuring himself, bad teeth and all). This has a devastating effect on Listerine’s brand image. What recourse does Listerine have? If the man does not make false representations implicitly or explicitly, and is not intentionally attempting to damage Listerine’s brand image, he can’t be charged with slander, or false advertising. It also doesn’t seem that he is infringing Listerine’s trademark, since he isn’t using it to refer to a different product in the same field, and that is the primary use trademarks are intended to protect against. It seems that the only recourse Listerine has is to (1) ask him to stop (he is not obligated to comply) and (2) issue statements to the effect that his results are not typical, possibly buying their own television advertisements at great expense. Certainly neither Listerine’s free speech rights, nor its associational rights are violated (or even “burdened,” whatever that’s supposed to mean – libertarians reject this category; rights are either violated or they are not).

I love this paragraph because it echoes essentially what I understand to be one of the major points of the Cluetrain Manifesto. Parties that try to control their label through top down hierarchy and lawsuits are doomed to fail. People know what a Democrat is either because they know they are one or they know someone else who claims to be one. That personal claim of allegiance (I’m a Democrat because I’m for grassroots government) if far more important than a party by-law or platform.

From the 95 Theses:

Brand loyalty is the corporate version of going steady, but the breakup is inevitable—and coming fast. Because they are networked, smart markets are able to renegotiate relationships with blinding speed.

You Don’t Own Your Brand — Your Customer Does
You don’t own your brand