The Supreme Court Says Your Filthy Trademark Is Protected by the First Amendment
A 6-3 ruling says that the First Amendment protects brand names that are considered “immoral” or “scandalous.”
The Supreme Court has cleared the way for you to go get FUCT. In a 6-3 ruling, the justices determined that a law prohibiting registration of "immoral or scandalous" trademark names violates the First Amendment.
The case, Iancu v. Brunetti, pitted a clothing manufacturer of the aforementioned brand name "FUCT" against the U.S. Patent and Trademark Office (PTO), which refused to accept the trademark registration because of its vulgar nature. Erik Brunetti fought the decision, and today the justices ruled in his favor.
The majority decision, written by Justice Elena Kagan and joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Neil Gorsuch, and Brett Kavanaugh, ruled that this part of the Lanham Act is unconstitutional because it discriminates on the basis of viewpoint. This ruling builds on a decision from 2017, Matal v. Tam, in which the Supreme Court ruled for similar reasons that the PTO couldn't reject the trademark for the band name The Slants as being offensive or disparaging.
The Tam ruling is invoked and quoted extensively in this ruling. Here's Kagan:
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.
Kagan further explains that under the court's interpretation of the Lanham Act, the PTO regularly rejects trademarks that appear to promote drug use—"Marijuana Cola," "Ko Kane," and "Bong Hits 4 Jesus"—and accepts trademarks that condemn drug use. That's not a viewpoint-neutral position on what is immoral or scandalous, she concludes. And therefore, it's in violation of the First Amendment.
Justice Samuel Alito concurred but wanted to add to his concerns here about the current pressures to discriminate on the basis of viewpoint in the United States and elsewhere:
Viewpoint discrimination is poison to a free society. But in 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. We reaffirm that principle today.
Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor put out a trio of opinions that dissented in part but also concurred in part. In Robert's dissent, he argues that he believes the definition of "scandalous" could be narrowed to bar trademarks that are "obscene, vulgar, or profane" without striking that part of the law down entirely. Breyer wrote that he did not see how a statute prohibiting the trademarking of brands with obscene or vulgar words would be viewpoint discrimination. And Sotomayor worried that the broadness of the majority ruling means "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." All three justices argue that "scandalous" can be read by the courts to merely forbid the trademarking of the profane and vulgar, and does not need to be interpreted as broadly as the majority decision does.
But to Alito's point, we're increasingly seeing a world where some people are purposefully classifying speech as "violence" when they disagree with the content of that speech. As the majority notes, the reason "Bong Hits 4 Jesus" was rejected was because the PTO believed that Christians would be "morally outraged" by the idea that Jesus supported drug use, that the concept itself was "obscene."
Furthermore, the marketplace offers consumers plenty of ways to react to products with names or labels they find obscene. Consumers can simply decline to purchase them, and if that happens, stores would likely decline to carry them for long.
Previously, Reason's Jacob Sullum detailed some of the contradictory and confusing trademark rulings that have come out of the PTO 's analysis of what constitutes "immoral or scandalous" language or imagery.
Read the Supreme Court ruling here. Below, ReasonTV on the Matal v. Tam case and The Slants: