Can you get patent and trademark protection if your company name is “FUCT”? You now may do so, according to the Supreme Court, which ruled 6-3 the prohibition on “immoral or scandalous” trademarks violates the First Amendment. The majority said viewpoint discrimination renders the law impossible to enforce without violating the First Amendment, while the dissenters said the feds can ban words and still be viewpoint neutral.

Erik Brunetti is no Coco Chanel, but he got the Supreme Court talking about him and saying dirty words. Brunetti started a brand, named it FUCT, and sells T-shirts and hoodies online. He wanted to patent the brand to build on it and exploit it commercially. The vulgar implications of the name led to his application being rejected. He appealed, claiming the decision was viewpoint discrimination, and won in the United States Court of Appeals for the Federal Circuit. The Patent and Trademark Office (PTO) appealed to the Supreme Court and will now be in charge of registering all the dirty-word companies sure to seek recognition under the new ruling.

Sticks and Stones May Break My Bones

Two years ago, the Supreme Court ruled unanimously that Simon Tam could register his musical group for a trademark. The PTO rejected The Slants for protection, calling the name “disparaging.” Justice Samuel Alito wrote a proud defense of free speech for the Court:

“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

The Lanham Act, which deals with patent and trademark issues, bans the registration of “immoral or scandalous” trademarks. Well, it did until Monday. Justice Elena Kagan wrote for the majority and was joined by Justices Alito, Clarence Thomas, Ruth Bader Ginsburg, Neil Gorsuch, and Brett Kavanaugh in striking it down.

The majority discussed the benefits of PTO registration. Registration is not required to enforce a trade or service mark, but it does grant the registrant several rights and privileges that aid in enforcing the mark, which is why people go through the trouble.

Hate Speech Is Free Speech

The PTO treats the language of the law including “immoral or scandalous” as a “unitary provision,” “rather than treating the two adjectives in it separately.” Kagan identified the key question as: “Is the ‘immoral or scandalous’ criterion in the Lanham Act viewpoint-neutral or viewpoint-based?” And she answered in no uncertain terms:

“It is viewpoint based.”

That’s the end of the analysis for the majority, as viewpoint-based restrictions on speech are the classic hallmark of laws that violate the First Amendment. Kagan quoted Justice Anthony Kennedy’s explanation about The Slants, where the PTO “allowed a trademark owner to register a mark if it was ‘positive’ about a person, but not if it was ‘derogatory.’” The case is the same here with respect to messages the office favors or disfavors, therein enforcing impermissible discrimination.

D.A.R.E. TO RESIST DRUGS AND VIOLENCE – that message was granted PTO protection, as was JESUS DIED FOR YOU. If your message is pro-drug or anti-messiah, however, the PTO will deny your mark as it has done with BONG HITS 4 JESUS and BABY AL QAEDA respectively. Again, referencing the Tam case, the majority held “a law disfavoring ‘ideas that offend’ discriminates based on viewpoint, in violation of the First Amendment.”

You Kiss Your Mother With That Mouth?

Alito wrote a separate concurrence, talking about how free speech is under attack around the world, including in those countries that claim to protect it, and he warned us about those restrictions encroaching here:

“[I]n many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination.”

The dissenters were unified by the idea that, while judging speech to be “immoral” necessarily involves viewpoint judgment and discrimination, the same need not be said for “scandalous” words and names.

Justice Sonia Sotomayor dissented on the basis that the PTO could read the language of the law to bar registration of marks due only to “obscenity, vulgarity, and profanity.” She argued that by allowing a narrow construction of the law, the Court would allow a viewpoint-neutral way for the government to avoid registering the “coming rush” of “the most vulgar, profane, or obscene words and images imaginable.” Justice John Roberts wrote his own decision, which agreed with Sotomayor’s on the “scandalous” analysis.

Justice Stephen Breyer argued that the Court should adopt a new way to evaluate First Amendment claims, asking if the law harms the First Amendment interests disproportionately to the relevant regulatory objectives sought. Thankfully no other justice thought this analysis was worthy of agreement, as it would surely lead to viewpoint-based discrimination. For Breyer, some harm to First Amendment interests are to be expected – “but not very much.” He finds the risks of being punished for our free speech “could be mitigated by internal agency review to ensure that agency officials do not stray beyond their mandate.”

One shudders to think of the world we would have were Breyer’s vision of the protections guaranteed by the Bill of Rights enacted. Fortunately, Alito, who is often deferential to government power, recognized the threat to free speech and what must be done to defend it. If not for him, Kagan, and the majority here, we would all be like Mr. Brunetti’s clothing line.

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