The U.S. Supreme Court has decided that a ban on trademarks for any names or logos with “immoral” or “scandalous” images is unconstitutional.
In a divided decision Monday, the high court ruled that vulgar and lewd product names must be offered trademark protection, striking down a federal law which banned registering “immoral” and “scandalous” trademarks because it violated the First Amendment.
#SCOTUS rules that federal ban on registration of “immoral” or “scandalous” trademarks violates the First Amendment, in challenge brought by designer who wanted to register the trademark for his FUCT clothing brand
— SCOTUSblog (@SCOTUSblog) June 24, 2019
The 6-3 ruling in Iancu v. Brunetti held that the Lanham Act violated the constitutional rights of Los Angeles artist Erik Brunetti for his clothing brand “FUCT.” Registration for the name of his clothing line was denied by an appeals board which found that it was “highly offensive” and “vulgar.”
I haven’t been to that many oral arguments at SCOTUS, but I doubt any will ever top Iancu v. Brunetti (No. 18-302; “FUCT” mark user wins of First Amendment grounds) in terms of sheer awkwardness. The transcript: https://t.co/6OUGIoiDtt
— Jennifer Bennett (@jbennettDC) June 24, 2019
“The most fundamental principle of free speech law is that the government can’t penalize or disfavor or discriminate against expression based on the ideas or viewpoints if conveys,” Justice Elena Kagan wrote in the court’s opinion. “The ban on ‘immoral’ and ‘scandalous’ trademarks does just that.”
But Chief Justice John Roberts partially dissented from the court decision, arguing that “standing alone, the term ‘scandalous’ need not be understood to reach marks that offend because of the ideas they convey; it can be read more narrowly to bar only marks that offend because of their mode of expression—marks that are obscene, vulgar, or profane.”
His view, along with Justice Stephen G. Breyer and Justice Sonia Sotomayor held that the high court’s opinion went too far.
“The court’s decision today will beget unfortunate results,” Sotomayor argued. “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.”
J. Roberts, in concurring & dissenting, Breyer, & Sotomayor also recognize, as S says, the government has a “reasonable interest” in not giving “ancillary support” to what is vulgar, profane, etc. All turns on definitions, categories & analogies–some to schools & children. 9/9
— Neil Dhingra (@NDhingra4) June 24, 2019
The law “disfavors certain ideas,” Kagan wrote, referring to Section 2a of the Lanham Act which excludes “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.”
Kagan cited examples of trademarks related to drug use that had been approved and denied in the opinion on the case which drew many legal briefs.
Scandalous speech is valuable to society and there’s no way, consistent with the First Amendment, for a government office to be trusted to decide what’s “scandalous.” Read Cato’s legal brief in Iancu v. Brunetti here…https://t.co/4y9UhbJrqz #CatoSCOTUS pic.twitter.com/FWHK5BnIzS
— Cato Press (@CatoPress) June 24, 2019
“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,” Kagan wrote in the opinion, joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.
Alito noted in a concurring opinion that the law discriminated based on viewpoint, thereby violating the First Amendment.
“Viewpoint discrimination is poison to a free society,” he wrote, urging the court to “remain firm” on the issue, during “a time when free speech is under attack.”
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