Law & the Courts

The Supreme Court Protected Vulgar Trademarks — And That’s Great

The Supreme Court in Washington, D.C. (Al Drago/Reuters)
The government should not be judging whether or not something is acceptable when they cannot use an objective standard to do so.

On Monday, the Supreme Court ruled that a law banning the registration of “immoral or scandalous” trademark names violated the First Amendment — and that’s a huge win for free speech.

The case, Iancu v. Brunetti, centered around “FUCT,” the name of a clothing line founded by petitioner Erik Brunetti. Initially, the U.S. Patent and Trademark Office (PTO) had not allowed him to register “FUCT” as a trademark, due to a section of the Lanham Act that stated no “immoral or scandalous” trademarks were allowed. Brunetti fought back — and he won.

Yep: In a 6-3 ruling, the Supreme Court decided that this portion of the act violated our constitutional right to free speech — with the majority opinion stating that “government may not discriminate against speech based on the ideas or opinions it conveys.”

Justice Elena Kagan also offered several examples of other past decisions to either grant or refuse to grant trademarks that she said had been reached using an unconstitutional standard. For example: The PTO often rejected trademarks that supported drug use, but accepted trademarks that condemned it. This sort of decision-making standard, Kagan argued, “distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them” — which she claimed was unconstitutional.

In a concurring opinion, Justice Samuel Alito stated that the ruling amounted to “recognition that a law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends” — which is precisely why I am so delighted to see that the Supreme Court ruled in the way that it did.

See, the truth is, there isn’t really any objective definition for what constitutes something “immoral or scandalous.” Rather, those words are going to mean different things to different people. For example: To me, the trademark “FUCT” is not offensive, because it does not bother me at all. My late grandmother, however — who once demanded that my uncle take her to confession because she saw two people kissing on TV — would probably have a different view. It’s completely subjective, and the government should not be in the business of judging whether or not something is acceptable when they cannot use an objective standard to do so.

The greatest danger, of course, of the government being able to pick and choose what kind of speech is allowed is actually not having the freedom to sell clothing bearing a slogan that’s essentially the past tense of the F-word. No, the danger is that the government would then have the power to limit speech that criticized it — and we must ensure that we never give up, or even minimize, that important check that we as citizens have on the power of government.


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