June 24, 2019

The Supreme Court holds that it violates freedom of speech to deny a trademark to the brand FUCT.

Justice Kagan writes the opinion, joined by Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh. There are 3 opinions that concur in part and dissent in part, one by Roberts, one by Breyer, and one by Sotomayor.

I haven't read it yet, but I'll be back with some excerpts. Here's the text, Iancu v. Brunetti.

ADDED: From Kagan's opinion:
Is the “immoral or scandalous” criterion in the Lanham Act viewpoint-neutral or viewpoint-based? It is viewpoint-based. The meanings of “immoral” and “scandalous” are not mysterious...

[T]he 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.

The facial viewpoint bias in the law results in viewpoint-discriminatory application...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.” PTO, Office Action of Aug. 28, 2010, Serial No. 85038867; see Office Action of Dec. 24, 2009, Serial No. 77833964; Office Action of Nov. 17, 2009, Serial No. 77671304. 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. See PTO, Reg. No. 2975163 (July 26, 2005); Reg. No. 2966019 (July 12, 2005). 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.” Office Action of Mar. 15, 2008, Serial No. 77305946. And the PTO refused to register trademarks associating religious references with products (AGNUS DEI for safes and MADONNA for wine) because they would be “offensive to most individuals of the Christian faith” and “shocking to the sense of propriety.” Ex parte Summit Brass & Bronze Works, 59 USPQ 22, 23 (Dec. Com. Pat. 1943); In re Riverbank Canning Co., 95 F. 2d 327, 329 (CCPA 1938). 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. See Reg. No. 5265121 (Aug. 15, 2017); Reg. No. 3187985 (Dec. 19, 2006). 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.” Office Action of Nov. 22, 2004, Serial No. 78444968; see Office Action of Feb. 23, 2005, Serial No. 78400213. Yet it approved registration of a mark with the words WAR ON TERROR MEMORIAL. Reg. No. 5495362 (Jun. 19, 2018). Of course, all these decisions are understandable. The rejected marks express opinions that are, at the least, offensive to many Americans. But as the Court made clear in Tam, a law disfavoring “ideas that offend” discriminates based on viewpoint, in violation of the First Amendment.

How, then, can the Government claim that the “immoral or scandalous” bar is viewpoint-neutral? The Government basically asks us to treat decisions like those described above as PTO examiners’ mistakes. See Brief for Petitioner 46. Still more, the Government tells us to ignore how the Lanham Act’s language, on its face, disfavors some ideas. In urging that course, the Government does not dispute that the statutory language—and words used to define it—have just that effect. At oral argument, the Government conceded: “[I]f you just looked at the words like ‘shocking’ and ‘offensive’ on their face and gave them their ordinary meanings[,] they could easily encompass material that was shocking [or offensive] because it expressed an outrageous point of view or a point of view that most members” of society reject. Tr. of Oral Arg. 6. But no matter, says the Government, because the statute is “susceptible of” a limiting construction that would remove this viewpoint bias. Id., at 7 (arguing that the Court should “attempt to construe [the] statute in a way that would render it constitutional”). The Government’s idea, abstractly phrased, is to narrow the statutory bar to “marks that are offensive [or] shocking to a substantial segment of the public because of their mode of expression, independent of any views that they may express.” Id., at 11 (emphasis added); see Brief for Petitioner 27–28. More concretely, the Government explains that this reinterpretation would mostly restrict the PTO to refusing marks that are “vulgar”—meaning “lewd,” “sexually explicit or profane.” Id., at 27, 30. Such a reconfigured bar, the Government says, would not turn on viewpoint, and so we could uphold it.

But we cannot accept the Government’s proposal, because the statute says something markedly different. This Court, of course, may interpret “ambiguous statutory language” to “avoid serious constitutional doubts.” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 516 (2009). But that canon of construction applies only when ambiguity exists.... The statute as written does not draw the line at lewd, sexually explicit, or profane marks... To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.

And once the “immoral or scandalous” bar is interpreted fairly, it must be invalidated....
Clearly and sharply put. Excellent opinion!

AND: Breyer, concurring and dissenting, complains about the use of doctrinal "categories" in First Amendment analysis. He'd prefer to look at whether "speech-related harm" are "out of proportion" to free-speech "values":
[S]cientific evidence suggests that certain highly vulgar words have a physiological and emotional impact that makes them different in kind from most other words. See M. Mohr, Holy S***: A Brief History of Swearing 252 (2013) (Mohr) (noting the “emotional impact” of certain profane words that “excite the lower-brain circuitry responsible for emotion,” resulting in “electrical impulses that can be measured in the skin”). These vulgar words originate in a different part of our brains than most other words. Id., at 250. And these types of swear words tend to attract more attention and are harder to forget than other words. See Jay, Caldwell-Harris, & King, Recalling Taboo and Nontaboo Words, 121 Am. J. Psych. 83, 83–86 (2008) (collecting research)....

These attention-grabbing words, though financially valuable to some businesses that seek to attract interest in their products, threaten to distract consumers and disrupt commerce. And they may lead to the creation of public spaces that many will find repellant, perhaps on occasion creating the risk of verbal altercations or even physical confrontations. (Just think about how you might react if you saw someone wearing a t-shirt or using a product emblazoned with an odious racial epithet.) The Government thus has an interest in seeking to disincentivize the use of such words in commerce by denying the benefit of trademark registration. Cf. Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam) (permitting regulation of words “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action”).

Finally, although some consumers may be attracted to products labeled with highly vulgar or obscene words, others may believe that such words should not be displayed in public spaces where goods are sold and where children are likely to be present....

I would conclude that the prohibition on registering “scandalous” marks does not “wor[k] harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives.” Reed, 576 U. S., at ___ (opinion of BREYER, J.) (slip op., at 4). I would therefore uphold this part of the statute. I agree with the Court, however, that the bar on registering “immoral” marks violates the First Amendment....
MORE: Also concurring in part and dissenting in part, there's Justice Sotomayor (who is joined by Justice Breyer). She's worried about "[t]he coming rush to register" trademarks with "the most vulgar, profane, or obscene words and images imaginable." She thinks the Court could have found ambiguity in "scandalous" and chosen the narrower meaning that applies only to "obscenity, vulgarity, and profanity."

This is interesting, from Sotomayor's opinion, taking note of Cohen v. California — the famous "fuck the draft" case in which the Court recognized that being offensive is an important part of expression:
Brunetti invokes Cohen v. California, 403 U.S. 15 (1971), to argue that the restriction at issue here is viewpoint discriminatory... Cohen arose in the criminal context: Cohen had been arrested and imprisoned under a California criminal statute targeting disturbances of the peace because he was “wearing a jacket bearing the words ‘F[***] the Draft.’”...
Cohen... famously recognized that “words are often chosen as much for their emotive as their cognitive force,” id., at 26, and that “one man’s vulgarity is another’s lyric,” id., at 25. That is all consistent with observing that a plain, blanket restriction on profanity (regardless of the idea to which it is attached) is a viewpoint-neutral form of content discrimination. The essence of Cohen’s discussion is that profanity can serve to tweak (or amplify) the viewpoint that a message expresses, such that it can be hard to disentangle the profanity from the underlying message— without the profanity, the message is not quite the same. See id., at 25–26. But those statements merely reinforce that profanity is still properly understood as protected First Amendment content. See also R. A. V., 505 U. S., at 384–385....

62 comments:

I'm Full of Soup said...

Isn't that Ritmo's middle name?

The Cracker Emcee Refulgent said...

Good. Nice to see free speech defended somewhere. Now, hopefully their business fails for being stupid, vulgar twats.

traditionalguy said...

Quick, somebody Trade Mark all the bad words. Then create a free market is vulgar words...for the children.

Lucid-Ideas said...

This is excellent news. I plan to appeal my state's DMV decision to deny my "FOTZ-HND" vanity plate.

hombre said...

“[T]he Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety.“

A standard that is no standard in an S-P society with no “sense of decency or propriety.” A no brainer, even for this court.

Bay Area Guy said...

What the fuct are these robed, elitist lawyers doing?!!?

mccullough said...

So the profane and sexually lewd can be banned from trademark because it offends Kagan and four other robed wizards.

Brilliant.

It’s why the Court won’t strike down ploygamy Hans but struck down a gay marriage ban.

Whatever offends or doesn’t offend at least four of the Wizards is what the law is.

mccullough said...

Polygamy bans

Achilles said...

People want the government to define decency.

Get mad when the government has a different definition of decency than they do.

News at 11.

Critter said...

The opinion sounds like it should apply in some way to the social media sensors who object to speech that is against their "community standards." Of course, defenders will point to the fact that they run private companies. But at what point does a business built on an internet that the public funded and exercising monopolistic power become an interest of the American people? It's clear that social media companies are no longer behaving like pure conduits for speech, but have exercised careful editing of speech to line up with their personal views. The antidote to bad speech is more free speech, not censorship. But when Google controls 90% of search, Google and Facebook et al control 80% of online advertising, and alternatives for getting an opinion in front of large numbers of people are nonexistent due to predatory practices of the monopolists against new competitors, its clear that the internet is not the same as newsprint and even cable TV.

The most important aspect of their editing is how it is used to interfere in free and fair elections, the cornerstone of our Democracy. We have just heard 2 years of lectures on how important it is to punish Russia for foreign interference in our elections. Similar interference from domestic companies controlled by a few mega-wealthy partisans is equally dangerous. I don't know what, but something is going to change in the current situation. I do know, however, that placing editorial control in the hands of the government may in fact make things worse (as this verdict shows). I suspect the right course is to remove the protection from lawsuits based on an exemption for mere conduits of speech. Let the juries and private actors reign in on-line abuse of free speech. Always a better course than government control.

mccullough said...

Only the Supreme Court gets to define decency. The Supreme Court is one branch of the federal government.

So the government is defining decency again.

Achilles said...

Critter said...
The opinion sounds like it should apply in some way to the social media sensors who object to speech that is against their "community standards." Of course, defenders will point to the fact that they run private companies.

They are not subject to libel laws or held responsible for what other people post on their forums. There are laws that specifically protect them from such lawsuits. They get this protection because they used to be open forums.

This obviously needs to change.



EDH said...

This Court, of course, may interpret “ambiguous statutory language” to “avoid serious constitutional doubts.” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 516 (2009). But that canon of construction applies only when ambiguity exists.... The statute as written does not draw the line at lewd, sexually explicit, or profane marks... To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.

Makes you wonder where Kagan would have come-down on Obamacare if she hadn't recused herself.

George Will 2015:


Conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’s disregard of the statute’s plain and purposeful language. But they have contributed to this outcome. Their decades of populist praise of judicial deference to the political branches has borne this sour fruit.

The court’s decision flowed from many decisions by which the judiciary has written rules that favor the government in cases of statutory construction. The decision also resulted from Chief Justice John G. Roberts Jr.’s embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. What Roberts does by way of, to be polite, creative construing (Justice Antonin Scalia, dissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging....

While purporting to not apply Chevron, Roberts expands it to empower all of the executive branch to ignore or rewrite congressional language that is not at all ambiguous but is inconvenient for the smooth operation of something Congress created. Exercising judicial discretion in the name of deference, Roberts enlarges executive discretion. He does so by validating what the IRS did when it ignored the ACA’s text in order to disburse billions of dollars of subsidies through federal exchanges not established by the states.

Chevron deference does for executive agencies what the “rational basis” test, another judicial invention, does for legislative discretion.

Leland said...

Remember when they said putting Kavanaugh on the bench would tilt us to 6-3 decisions; I guess they were right.

Ken B said...

At first glance this seems good. I can imagine trademarks that might affront Althouse though. Robert Crumb had a product made of lips ...

Roger Sweeny said...

I can't wait for Nigger(R) watermelon and Wetback(R) burritos.

Quaestor said...

But once again, the PTO approved marks—PRAISE THE LORD for a game

Enjoyed to violent excess by Rod and Todd Flanders.

Kagan shows some laudable liberality toward our highly endangered culture of free speech and unfettered competition in the marketplace or products and ideas, but I'd like to hear her opinion on 9mm ammunition trademarked Kopkiller or RAPE brand condoms.

Or how about something more offensive? Suppose a brazil nut importer wanted to use a cartoon image of a barefooted African-American as its trademark in the style of Chiquita Bananas's "Carmen Miranda" girl? It looks like the Court is trying to set limits on the Lanham Act, but so far they've not done much of a job of the defining the boundry.

mccullough said...

Kagan joined the majority in King v Burwell.

She’s a hack in black just like Roberts.


She’ll rewrite statutes to get the results she wants.

The Washington Wizards

n.n said...

Monotonically divergent. They can go plan themselves.

the Court won’t strike down ploygamy Hans but struck down a gay marriage ban

It's not politically congruent ("="). The good Americans are notoriously Pro-Choice.

n.n said...

a cartoon image of a barefooted African-American

White, black, brown, yellow, or albino?

Quaestor said...

Is Kagan implying that our standards of decency have deteriorated to the point that FUCT is no longer offensive, or is she implying offensiveness is nothing the PTO should concern itself with? What about a fast food restaurant chain called Mack Donald's, that would certainly offend the politically powerful owners of the McDonald's brand.

Quaestor said...

White, black, brown, yellow, or albino?

Baie cutem, engelsman.

Quaestor said...

Boere gaan nooit kaalvoet nie.

narayanan said...

“Oh my God. This is terrible. This is the end of my Presidency. I’m FUCT,”

Trump approved

Known Unknown said...

"I can't wait for Nigger(R) watermelon and Wetback(R) burritos."

Not an analogy to FUCT. Try again.



Known Unknown said...

French Connection UK has existed for quite a while. They abbreviated the store names FCUK obviously. Well, that ran its course and now they just go by the rather benign French Connection.

AustinRoth said...

Known Unknown -I disagree. That is exactly the point of the dissent (which in the whole I disagree with). How could those be disallowed?

But God help the company that tries, especially the first one. Their delivery drivers would get attacked, and their HQ burned to the ground.

Yancey Ward said...

Instead of FUCT™, I would have loved to see this case have been about "ABORTION IS MURDER™".

That is just the bombthrower in me coming out.

Hammond X. Gritzkofe said...

OK. Now let's do "QUEERZ," "NEEGARZ," "NATZEEZ," and "RITEWINGZ."

Yancey Ward said...

In other words, what would it have taken to get Kagan off of the majority decision?

Bay Area Guy said...

The Supreme Court told the Defendants to get fuct.

Critter said...

Being Constitutionally protected and commercially viable are two very different things when it comes to branded products and services. I'll trust the marketplace before government to control the excesses.

rhhardin said...

If your trademark is used as a noun, you lose it.

n.n said...

The Supreme Court told the Defendants to get fuct.

They could have been advised to get planned.

exhelodrvr1 said...

We are all FUCT today!

Kevin said...

When is the last day of the court?

That's the day I expect they'll rule on Trump's authority to deport the Dreamers.

Given Nancy's sudden return to the bargaining table, she may be trying to get ahead of that one.

wholelottasplainin' said...

Quaestor said...
Is Kagan implying that our standards of decency have deteriorated to the point that FUCT is no longer offensive, or is she implying offensiveness is nothing the PTO should concern itself with? What about a fast food restaurant chain called Mack Donald's, that would certainly offend the politically powerful owners of the McDonald's brand.
***************

If a mark is "confusingly similar" it can be denied a trademark.

You can safely bet that McDonalds would object, and win.

btw: Kodak had a trademark on the yellow they used for their film containers, all the way down to the wavelength.

n.n said...

First, they tell us to get Planned for social progress. Now, they tell us to get FUCT.

iowan2 said...

None of this falls under judicial jurisdiction. Let the Brand live. Then let retailers do the censoring of speech. That's how strip bars were handled. The local prudes could do as they pleased. The people self governing, free from DC interference. What a concept. There should be a word for that.

iowan2 said...

Kodak had a trademark on the yellow they used for their film containers, all the way down to the wavelength.
We all know John Deere Green. Caterpillar Yellow

McDonalds, A case back a couple of decades the govt refused to let a person who was a McDonald, name his restaurant after himself even though it was was a sit down, white table cloth eatery.

n.n said...

Isn't FUCT a pejorative term in the urbane dictionary?

stevew said...

Seems sensible to me - show me where there is 100% agreement on what language is decent and what isn't. Asshole, fuck, shit, and douchebag are all in fairly common usage, at least where I live, work, and play, so common that they are no longer effective at inciting shock or horror, and often aren't even heard. They've become the um's and ah's, the expletives, of colloquial speech. Speaking only for myself, these sorts of words don't offend me. I also don't use them much.

This FUCT thing is a gimmick. It will pass. They've gotten all the economic mileage from it that they should expect.

Rabel said...

"Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas."

- Alito in concurrence.

anti-de Sitter space said...

"“Always be cruel”? Not according to the Lanham Act’s “immoral or scandalous” bar."

Was promoting cruel neutrality considered immoral/scandalous?

Narr said...

A serious outbreak of common sense on the SC! Maybe it'll catch on.

Narr
I'm an optimist

Ingachuck'stoothlessARM said...

FELCHT Straws--

"...cuz you can bet your ass your's anus good as ours!"

Sigivald said...

Breyer should stick to ice-cream, and Sotomayor continues to disappoint.

("I'm old enough I remember when the 'liberals' were free-speechers.")

(And to be fair, Alito's concurrence is also nonsense.

Trademarks do not express ideas, generally. "Apple" expresses no idea. The AT&T logo expresses nothing. Disney's mouse-ears express no "idea".

All a trademark is for is defining a brand identity! Thus "trade mark".)

Nichevo said...
This comment has been removed by the author.
Nichevo said...

Yancey Ward said...
Instead of FUCT™, I would have loved to see this case have been about "ABORTION IS MURDER™".

That is just the bombthrower in me coming out.

6/24/19, 1:11 PM


I was thinking more GIMPY MCCONNELL AND HIS CHING CHONG WIFEY MUST HANG ALONG WITH ROBERTS AND THE MICK BABY HE STOLE. How's that going to work out? Think Roberts recuses?

n.n said...

Get Planned, Get FUCT, a logical progression.

wholelottasplainin' said...

iowan2 said...
None of this falls under judicial jurisdiction.

>>>> If you say so!!! Try going to the Supremes and telling them that! I mean, they're not interpreting the meaning or scope of laws passed by Congress.........or anything like that!

Let the Brand live. Then let retailers do the censoring of speech.

>>>>the retailers are often at the end of a long chain. Do you expect every Vons supermarket in Cali, for example, to discover and sue Chinese importers of fake Coca Cola?

>>>Just consider how foreign counterfeits would flood in, many of dubious quality and safety. Haven't we already had people die in this country from counterfeit Chinese goods?

>>>And appropriating someone else's property--their brand, commercial identity and the goodwill that goes with it---isn't "speech".

That's how strip bars were handled.

>>>> There are no copyright or trademark issues involved in such cases.

The local prudes could do as they pleased. The people self governing, free from DC interference. What a concept. There should be a word for that.

>>>Whew! You've obviously thought deeply about these matters..............

ken in tx said...

Next up for trade mark, NiggarChaiser fireworks and NiggarToe party nuts.

Mike (MJB Wolf) said...

It’s a FUCT up day at the court.

DEEBEE said...

Somehow, I do not feel safe from the libs on SCOTUS when it would come to using Xer and Xis

pdug said...

I like the old definition of scandalous, which was a stumbling stone that would cause someone else to fall morally.

The government shouldn't put its imprimatur (a trademark is a RESTRICTION on speech: who can call their product that name and enforce it against others) on words that might cause tender consciences to violate their consciences.

pdug said...

"Woe to the world because of scandals. For it must needs be that scandals come: but nevertheless woe to that man by whom the scandal cometh. "

n.n said...

Correction: Get FUCT, Get Planned, a logical progression.

Lurker21 said...

Which justice would have found it hardest to resist the dumb puns, like "If we allow this, America is FUCT"? Who's the joker on the court?

Mike (MJB Wolf) said...

Pixar

David Blaska said...

We are so ...

Known Unknown said...

"Known Unknown -I disagree. That is exactly the point of the dissent (which in the whole I disagree with). How could those be disallowed?"

I didn't mean strictly legally analogous. FUCT is a play on a verb word that while offensive to some, does not target a particular subset of people. Anyone can get FUCT or be FUCT. The other dumb examples given (more than once I see) would target a particular demographic.

In my fantasy free world, I would certainly allow businesses to use the offensive names listed, but they'd also have to suffer the consequences of such an idiotic business decision.

Known Unknown said...

"What about a fast food restaurant chain called Mack Donald's, that would certainly offend the politically powerful owners of the McDonald's brand."

That would not be about offending, per se, but the confusion/similarity argument.