June 26, 2019

SCOTUS and Fouled-Up Free Speech

What constitutes an “immoral or scandalous” trademark? And who gets to decide?

This week the Supreme Court of the United States (SCOTUS) rendered yet another smackdown to the U.S. Patent and Trademark Office (USPTO), ruling it cannot censor trademarks it views as “immoral or scandalous” — whatever that is. Joined by Justices Ruth Bader Ginsburg, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, Justice Elena Kagan delivered the Court’s opinion, stating, “The First Amendment does not allow the government to penalize views just because many people, whether rightly or wrongly, see them as offensive.” This, after rendering a related opinion two years ago striking down a similar USPTO ban on “disparaging” trademarks — whatever those are. And therein lies the problem.

“Free speech”, by definition is, well, free. Our Constitution has been gerrymandered no small amount by carve-outs to “free” speech, each of which permit a license to the government to censor certain speech by calling it, effectively, “not ‘free speech.’” In legal jargon, such utterances and expressions are said to be “unprotected” — unprotected, that is, by the U.S. Constitution. Of course, the Constitution itself is utterly silent on the issue of “unprotected” speech, simply stating, “Congress shall make no law … abridging the freedom of speech…” But the courts have certainly not been so silent.

Thus, “obscenity,” “fighting words,” “fraudulent misrepresentation,” “advocacy of imminent lawless behavior,” and “defamation” over the years have been judicially morphed into “unprotected” speech. Perhaps there’s a place for such “aardvark” speech categories. Perhaps. The real problem manifests itself, though, when government agencies hold the hammer on what-is-and-what-is-not “free speech.” That’s when human-in-the-loop problems — biases, errors in judgment, and outright maliciousness — arise. Fortunately, the Court is now attempting to put the genie at least partially back in the bottle, holding that it is not the role of the USTPO to “deem” which images or words are “immoral” or “scandalous.” In the instant case the USPTO had refused registration of the acronym formed from the words, “Friends U Can’t Trust.” Yes, we know what it spells and sounds like — puhleaze: Tack on “Up” after it and you’re left with our opinion of the acronym itself. That said, as to the right to such a trademark, that’s a different story.

Though all nine justices agreed on striking down the USPTO’s ban on “immoral” trademarks, three — Chief Justice John Roberts, Justice Stephen Breyer, and Justice Sonia Sotomayor — disagreed with the decision as to “scandalous” trademarks, believing such a designation could serve a “legitimate purpose” in barring “vulgarity and profanity.” Again: “Maybe.” But is it really the USPTO’s job to parse through the muck of what is and isn’t “scandalous”? Isn’t this the same kind of reasoning that attempted to ban the Washington Redskins’ trademark as well as the Asian-American band called the “Slants”? Where does such reasoning stop?

Attempts to define any of those terms — “scandalous,” “vulgarity,” and “profanity” — are a lot easier said than done, by the way: Over half a century of all-over-the-map jurisprudence in the gooey mess that is “free speech” amply bears this fact out, and can be found through a simple Internet search on the topic.

Notwithstanding our own opinion of the asinine trademark sought in this landmark case, we wholeheartedly agree with the Court’s nine-zip opinion, which effectively evicts the USPTO from its increasingly censorious “Morality Police” throne. In a free society, being occasionally offended is the price we all pay for being able to say what we want — through words, expressions, or even trademarks — without fear of “groupthink” censoring on the part of the anointed-few holding positions of government power. With this week’s decision, SCOTUS echoes that sentiment and gets the USPTO out of the censor business.

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