Tuesday, June 25, 2019

Court allows vulgar trademark to proceed under the First Amendment

A slow-moving revolution is taking place in First Amendment jurisprudence over the government's right to regulate certain forms of offensive commercial speech. This is taking place in the trademark context, so people are not noticing, but it furthers the Supreme Court's bedrock insistence that the government cannot discriminate among speakers on the basis of viewpoint.

The case is Iancu v. Brunetti, issued on June 24. Some background first: In Matal v. Tam, the Supreme Court a few years ago declared unconstitutional the Lanham Act’s ban on registering marks that “disparage” any“person[ ], living or dead.” The Lanham Act is a federal law that regulates copyrights. In that case, the Court said the government could not deny a trademark to a musical group called The Slants even thought the government believed the name was offensive to Asians. This time around, the case before the Court involves a clothing line that uses the trademark FUCT. Say it out  loud and you'll see why the government did not want to give the company a trademark. Justice Kagan notes that the brand name is “the equivalent of [the] past participle form of a well-known word of profanity.” Is that denial legal?

It is not, the 7-2 majority says. Just as the government could not deny a trademark to The Slants on the ground that the name was too offensive, then it cannot deny a trademark to FUCT on the ground that the name is "immoral or slanderous." What is "immoral or slanderous"? Let's turn to the dictionary. If you read Supreme Court rulings, you know they consult the dictionary all the time to decipher the meaning of ordinary words.  Judge Kagan writes:

The meanings of “immoral” and“scandalous” are not mysterious, but resort to some dictionaries still helps to lay bare the problem. When is expressive material “immoral”? According to a standard definition, when it is “inconsistent with rectitude, purity,or good morals”; “wicked”; or “vicious.” Webster’s New International Dictionary 1246 (2d ed. 1949). Or again, when it is “opposed to or violating morality”; or “morally evil.” Shorter Oxford English Dictionary 961 (3d ed. 1947). So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality,but not marks that denigrate those concepts. And when is such material “scandalous”? Says a typical definition, when it “giv[es] offense to the conscience or moral feel ings”; “excite[s] reprobation”; or “call[s] out condemnation.” Webster’s New International Dictionary, at 2229. Or again, when it is “shocking to the sense of truth, decency,or propriety”; “disgraceful”; “offensive”; or “disreputable.” Funk & Wagnalls New Standard Dictionary 2186 (1944).

So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. “Love rules”? “Always be good”? Registration follows. “Hate rules”? “Always be cruel”? Not according to the Lanham Act’s “immoral or scandalous” bar.
That's a good way to determine if the government is discriminating on the basis of viewpoint. Positive, happy trademarks are OK. Not vulgar ones that violate contemporary moral standards. The Court notes a few examples of trademarks that the government denied on the basis of these moral standards, such as those conveying approval for drug use (YOU CAN’T SPELL HEALTHCARE WITHOUT THC for pain-relief medication, MARIJUANA COLA and KO KANE for beverages). But anti-drug messages are usually approved.

Justice Sotomayor dissents in part, along with Justice Breyer. It's the rare case when Justices Kagan and Sotomayor and Breyer are on opposite ends of a Supreme Court opinion. Sotomayor writes:

The Court’s decision today will beget unfortunate results. With the Lanham Act’s scandalous-marks provision, 15 U. S. C. §1052(a), struck down as unconstitutional viewpoint discrimination, the Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.

The coming rush to register such trademarks—and the Government’s immediate powerlessness to say no—is eminently avoidable. Rather than read the relevant text as the majority does, it is equally possible to read that provision’s bar on the registration of “scandalous” marks to address only obscenity, vulgarity, and profanity. Such a narrowing construction would save that duly enacted legislative text by rendering it a reasonable, viewpoint-neutral restriction on speech that is permissible in the context of a beneficial governmental initiative like the trademark-registration system. I would apply that narrowing construction to the term “scandalous” and accordingly reject petitioner Erik Brunetti’s facial challenge.

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