Supreme Court Continues First Amendment Expansion

On June 24, 2019, in Iancu v. Brunetti, the Supreme Court found that the Lanham Act’s prohibition against of any trademark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute ….”

The Court had already found unconstitutional the provision that dealt with disparagement of persons living or dead in Matal v. Tam, 137 S.Ct. 1744 (2017). It was not surprising then that the Court continued its expansion of the First Amendment jurisprudence to do away with the decades old prohibition against immoral or scandalous matter.

Writing for the six-person majority, Justice Kagan made this a much easier case by highlighting the inconsistency of the Patent and Trademark Office practice, characterizing its selectivity as a form of viewpoint discrimination, which is all but barred by the First Amendment as “presumptively unconstitutional” (Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829–830 (1995).

The PTO rejected marks conveying approval of drug use (YOU CAN’T SPELL HEALTHCARE WITHOUT THC for pain-relief medication, MARIJUANA COLA and KO KANE for beverages) because it is scandalous to “inappropriately glamoriz[e]drug abuse.” But at the same time, the PTO registered marks with such sayings as D.A.R.E. TO RESIST DRUGS AND VIOLENCE and SAY NO TO DRUGS—REALITY IS THE BEST TRIP IN LIFE. Similarly, the PTO disapproved registration for the mark BONG HITS 4 JESUS because it “suggests that people should engage in an illegal activity [in connection with] worship” and because “Christians would be morally out-raged by a statement that connects Jesus Christ with illegal drug use. And the PTO refused to register trade-marks associating religious references with products (AGNUS DEI for safes and MADONNA for wine) because they would be “offensive to most individuals of the Chris-tian faith” and “shocking to the sense of propriety.” But once again, the PTO ap-proved marks—PRAISE THE LORD for a game and JESUS DIED FOR YOU on clothing—whose message suggested religious faith rather than blasphemy or irreverence. Finally, the PTO rejected marks reflecting support for al-Qaeda (BABY AL QAEDA and AL-QAEDA on t-shirts) “because the bombing of civilians and other terrorist acts are shocking to the sense of decency and call out for condemnation.”

A minority of justices wrote opinions concurring and dissenting in part to try and distinguish the scandalous aspect of the statute to coincide with “obscene, vulgar, or profane.” The goal was to salvage some vestige of editorial control by the PTO. Since obscenity is outside the scope of the First Amendment, such an effort will certainly allow Congress to revise the statute to exclude obscene trademarks. Vulgar and profane speech, however, remain within the ambit of the First Amendment, so it is unlikely that tasked with an actual case, the justices pressing such a categorization will be hard pressed to find five justices. Indeed, the FUCT trademark is as likely vulgar as it is immoral. And vulgarity will give rise to as many viewpoint objections and practical inconsistencies as does decisions on immorality.

Moving forward, the decision adds yet another example of the Court limiting the government’s ability to enforce normative value judgments in the face of First Amendment concerns. Eventually, these precedents will reach FCC jurisprudence and other regulatory regimes as well. As a standard-holder for content decency, the government is truly … (you know the phrase).

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