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Throughout the history of the United States, the government has policed morality of its citizenry in both subtle and obvious ways. On Monday, the Supreme Court tackled one of the more subtle forms of rectitude — a nearly century-old prohibition on the federal registration of “immoral” or “scandalous” trademarks. In its decision, the high court held that the refusal by the U.S. Patent and Trademark Office to accept the registration of “FUCT” amounted to viewpoint discrimination in violation of the First Amendment to the U.S. Constitution.
“FUCT” is the clothing line founded by Erik Brunetti, who took on trademark examiners after being turned away. In December 2017, he got the the United States Court of Appeals for the Federal Circuit to hold that the Lanham Act’s ban on immoral or scandalous matter was unconstitutional. That seemingly opened the door to more registrations of f-bombs and other profane marks that could be associated with sponsors.
The Federal Circuit’s 2017 decision came months after the Supreme Court opinion involving Simon Tam, the Asian American frontman of The Slants, who convinced a majority of justices to strike down a separate provision of the Lanham Act — one that looked down on the registration of disparaging marks.
The Tam case presaged the Brunetti one, but the government was nevertheless hopeful that its prurient concerns would survive another day.
The government’s main contention was that the trademark registration program doesn’t really restrict speech. To hold a trademark, meaning a word or phrase used to identify goods and services in commerce, one doesn’t necessarily need to register. Doing so only provides certain advantages like good evidence of that trademark’s validity. As such, the government framed registration as a subsidy for marks it wishes to promote rather than a restriction on marks that are excluded. In the Tam case, a majority of justices didn’t come to a firm conclusion on that proposition. A plurality of justices led by Samuel Alito rejected the subsidy argument, but what ultimately carried the day two years ago was the conclusion in Justice Anthony Kennedy’s concurrence that the ban on disparaging marks was a viewpoint-based restriction of speech.
Filling in the gaps in its follow-up opinion today, the Supreme Court agrees with Brunetti that no principled reason exists for distinguishing the disparagement ban from the scandalous ban.
As Justice Elena Kagan writes, “We hold that this provision infringes the First Amendment for the same reason: It too disfavors certain ideas.”
The government’s claim that it’s a content neutral action to establish criteria on profanity, excretory and sexual matter can’t survive the sniff test, not when such regulation amounts to a perspective on what’s offensive and not when trademark examiners have in the past applied their standards inconsistently.
“The facial viewpoint bias in the law results in viewpoint-discriminatory application,” writes Kagan. “The PTO, for example, asks whether the public would view the mark as ‘shocking to the sense of truth, decency, or propriety’; ‘calling out for condemnation’; ‘offensive’; or ‘disreputable.’ Using those guideposts, the PTO has refused to register marks communicating ‘immoral’ or ‘scandalous’ views about (among other things) drug use, religion, and terrorism. But all the while, it has approved registration of marks expressing more accepted views on the same topics.”
Continuing, she adds, “The ‘immoral or scandalous’ bar stretches far beyond the Government’s proposed construction. The statute as written does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose ‘mode of expression,’ independent of viewpoint, is particularly offensive. It covers the universe of immoral or scandalous — or (to use some PTO synonyms) offensive or disreputable — material. Whether or not lewd or profane. Whether the scandal and immorality comes from mode or instead from viewpoint. To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.”
Kagan was joined in the opinion by Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.
The decision also could throw open the continued viability of FCC regulators policing indecency on broadcast television. The justices only passingly referenced Pacifica, the 1978 opinion concerning the attempted radio broadcast of the infamous seven words that comedian George Carlin once listed as things you couldn’t ever say on television. Nevertheless, should the FCC ever get tough again on dirty words uttered on television, it’s likely that today’s Brunetti case will factor heavily.
At least one justice in the majority urged restraint.
“Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends,” wrote Alito in a concurring opinion.
Other justices disagreed with the majority’s holding.
For example, Justice Stephen Breyer asked, “How much harm to First Amendment interests does a bar on registering highly vulgar or obscene trademarks work? Not much. The statute leaves businesses free to use highly vulgar or obscene words on their products, and even to use such words directly next to other registered marks. Indeed, a business owner might even use a vulgar word as a trademark, provided that he or she is willing to forgo the benefits of registration.”
Writes Sonia Sotomayor in dissent, “While the line between viewpoint-based and viewpoint neutral content discrimination can be ‘slippery,’ it is in any event clear that a regulation is not viewpoint discriminatory (or even content discriminatory) simply because it has an ‘incidental effect’ on a certain subset of views. Some people, for example, may have the viewpoint that society should be more sexually liberated and feel that they cannot express that view sufficiently without the use of pornographic words or images. That does not automatically make a restriction on pornography into viewpoint discrimination, despite the fact that such a restriction limits communicating one’s views on sexual liberation in that way.”
In other Supreme Court news, the justices have rejected a petition brought by ReDigi to examine whether its secondhand digital market was blessed by the First Sale Doctrine, or as a lower appeals court concluded, whether the resale of digital songs amounted to impermissible reproduction in violation of copyright law. The petition brought an amicus brief arguing that the conclusion would mean the digital availability of less old movies.
On the other hand, the Supreme Court has accepted the review of a case — Georgia v. Public.Resource.Org Inc —that will decide whether annotations of state government code are copyrightable. The Eleventh Circuit concluded they weren’t based on the government edicts doctrine.
Finally, in a blow to journalists using the Freedom of Information Act, the Supreme Court today reversed a lower court opinion by ruling that when confidential and financial information is treated as private by its owner and provided to the government with an expectation of privacy, such information is exempted from disclosure. The expansion of what’s deemed confidential is sure to hamper media company’s efforts to access regulatory records. See that decision here.
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