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....