For the second time in two years, the U.S. Supreme Court has
invalidated a provision of the Lanham Act on First Amendment grounds.
In 2017, the Court unanimously ruled in Matal v. Tam that the U.S. Patent and Trademark Office (“USPTO)” had
violated Simon Tam’s First Amendment rights when it rejected his application to
register the name of his band, "The Slants." In that case,
registration was denied based on a provision of the Lanham Act prohibiting the
registration of “disparaging” trademarks.
This week, the high court ruled that a related provision of
the statute that bars the registration of “immoral” and “scandalous” trademarks
similarly violated the First Amendment rights of Erik Brunetti, an artist and entrepreneur,
who applied to register the trademark “FUCT” for his clothing line. In both cases, the Court ruled that these provisions
of 15 U. S. C. §1052(a), infringe the First Amendment rights of applicants because
the law disfavors certain ideas. The
First Amendment provides, in relevant part, “Congress shall make no law... abridging
the freedom of speech.”
In this week’s majority opinion in Iancu v. Brunetti, Justice Kagan explained that, under the First
Amendment, the government may not discriminate against speech based on the
ideas or opinions it conveys, and that “viewpoint discrimination” is an egregious
form of content discrimination that is presumptively unconstitutional.
It is a “bedrock First Amendment principle” that the
government cannot discriminate against “ideas that offend.” Thus, although the rejected trademarks may be offensive
to many Americans, a law disfavoring “ideas that offend” necessarily discriminates
based on viewpoint.
Justice Kagan explained that “There are a great many immoral
and scandalous ideas in the world (even more than there are swearwords), and
the Lanham Act covers them all. It therefore violates the First Amendment by
barring such words from trademark registration.
The Court's decision comes just shy of the 41st anniversary of the July 3, 1978 decision in FCC v. Pacifica Foundation, in which the Supreme Court found the Federal Communications Commission's censorship of George Carlin's "seven dirty words" monologue, and the Commission's restriction of the broadcast of four-letter words, was not based on a point of view but instead concerned the way in which it was expressed. While not a trademark case, in that decision, the Court held the Commission's censorship of Mr. Carlin's monologue based on his use of those words did not violate the First Amendment.
Four decades later, on the eve of the Fourth of July, the view of the four dissenting justices in that case - Justices Stewart, Brennan, White and Marshall - who believed the governmental restriction of such language constituted an unconstitutional abridgment of the freedom of speech, appears to have carried the day.
The Court’s opinion in Iancu v. Brunetti is available here.
The Court's decision comes just shy of the 41st anniversary of the July 3, 1978 decision in FCC v. Pacifica Foundation, in which the Supreme Court found the Federal Communications Commission's censorship of George Carlin's "seven dirty words" monologue, and the Commission's restriction of the broadcast of four-letter words, was not based on a point of view but instead concerned the way in which it was expressed. While not a trademark case, in that decision, the Court held the Commission's censorship of Mr. Carlin's monologue based on his use of those words did not violate the First Amendment.
Four decades later, on the eve of the Fourth of July, the view of the four dissenting justices in that case - Justices Stewart, Brennan, White and Marshall - who believed the governmental restriction of such language constituted an unconstitutional abridgment of the freedom of speech, appears to have carried the day.
The Court’s opinion in Iancu v. Brunetti is available here.
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