In a 6-3 decision, the Supreme Court on Monday sided with a Los Angeles designer who sought to trademark “FUCT” for his clothing line but was blocked by a federal law prohibiting registration of “immoral or scandalous” ideas.
The court said the law violates the First Amendment.
“There are a great many immoral and scandalous ideas in the world (even more than there are swearwords),” wrote Justice Elena Kagan in the majority opinion. “The Lanham Act covers them all. It therefore violates the First Amendment.”
Kagan wrote that judging which ideas are “immoral or scandalous” is highly subjective and potentially discriminatory.
“The statute, on its face, distinguished 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,” she writes. “The statute favors the former and disfavors the latter.”
Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor dissented, in part, in the decision. The trio would have struck down the “immoral” portion of the law but upheld it’s ban on trademarking “scandalous” ideas.
“Refusing registration to obscene, vulgar or profane marks does not offend the First Amendment,” Roberts wrote in his dissent. “Whether such marks can be registered does not affect the extent to which their owners may use them in commerce to identify goods.”
Justice Breyer noted that businesses can still use “highly vulgar or obscene words” on their products and in marketing. “How much harm to First Amendment interests does a bar on registering highly vulgar or obscene trademarks work? Not much,” he said.
Justice Sotomayor warned of an impending rush to trademark “the most vulgar, profane or obscene words and images imaginable.”
But the Los Angeles designer, Erik Brunetti, argued that the U.S. Patent and Trademark Office applies the law inconsistently and has already approved the registration of hundreds of potentially offensive terms. “FCUK,” “THE F WORD,” and “F’D” are all trademarked, for example.
Brunetti says “FUCT” is pronounced by saying each letter and is not meant to be offensive.
The Trump administration, which defended the Act, argued that it wasn’t taking a position on the speech itself but rather the “mode of expression,” invoking a public interest in limiting exposure to profanity among children and others who find it hurtful.
In 2017, the Supreme Court struck down a similar part of the federal trademark law — one which had banned trademark registration for “disparaging” language. The justices said, in a unanimous opinion, that “giving offense is a viewpoint” protected by the First Amendment.
The American Civil Liberties Union, which filed a brief in support of Brunetti, hailed the court’s decision as a “victory for the First Amendment.”
“Government bureaucrats should not be deciding what speech is or is not deserving of trademark protection based on what they consider to be too ‘scandalous’ and ‘immoral,’” said ACLU attorney Emerson Sykes. “That is, at its heart, government suppression of speech based on the viewpoint expressed. It is also, as the Supreme Court today reaffirmed, unconstitutional.”
