Supreme Court Says Law Banning ‘Scandalous’ Trademarks Violates the First Amendment

Cheryl Sanders
June 25, 2019

"The ban on "immoral" and "scandalous" marks does just that".

Five justices joined Kagan's opinion in Iancu v. Brunetti.

The nation's highest court, in a 6-3 decision, struck down a federal prohibition on the registration of trademarks deemed to be "immoral or scandalous".

The government argued that registering a trademark is a benefit, not a restriction on speech. The Justice Department declined to comment on the decision or the trademark office's next steps. Justice Alito contributed a concurring opinion, while Justices John Roberts and Stephen Breyer submitted opinions concurring in part and dissenting in part. He said that would allow the government to stop trademarks such as FUCT.

The dispute might sound familiar. The court previously ruled against the trademark because the name FUCT could be viewed as "scandalous" or "immoral".

Brunetti says the clothing label he founded more than 20 years ago isn't just a "bad word brand".

The Supreme Court ruled in favor of a clothing brand that was initially denied a trademark for an unusual spelling of the F-word.

"Justice Elena Kagan wrote for a majority of the court that the "'immoral or scandalous' bar is substantially overbroad".

"A decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event in this court", Kavanaugh wrote.

Also past year, the court blocked a California law requiring clinics that counsel women against abortion to notify clients of the availability of abortions paid for by the state, finding that it violated the free speech rights of the Christian-based facilities.

The disagreement was over whether "scandalous" swept too broadly.

When the trademark office shot down Brunetti, he filed suit. Federal officials refused to register the brand's name. "But all the while, it has approved registration of marks expressing more accepted views on the same topics". It rejected trademarks reflecting support for al-Qaida but approved a trademark for a war on terrorism memorial.

That is "understandable", she wrote. Vague laws leave it to unelected attorneys and judges to determine what acts qualify as crimes, Gorsuch said, when it is really Congress' job to make that decision with the laws that they pass.

Viewpoint discrimination is poison to a free society.

Several of the justices in favor of striking down the ban pointed out that the government can't stop anyone from selling products that were denied protection, and that the law had been applied inconsistently.

"The disparagement clause violates the First Amendment's Free Speech Clause", Alito wrote for the court.

Alito was not more specific than that, but many in the conservative legal establishment have been upset by reports that some college campuses have banned speakers on the right, or made it more hard for them to be heard.

Then, Brunetti got the USPTO blockade overturned by a federal appeals court. "No speech is being restricted; no one is being punished", the chief justice wrote. Similarly, it allowed faith-related trademarks in certain contexts, like for T-shirts for the Christian faithful, but it wouldn't allow a "Madonna" brand of wine.

Breyer anxious about a coarsening of society. In the words of PTO authorities, FUCT was "a total vulgar".

The justices struggled with what line to draw on which words they would find to be the most vulgar and profane. Still, on Monday, the court found that the trademark office should keep its personal feelings to itself - and Alito joined in the opinion.

Other reports by iNewsToday