My most deeply held political belief is that the First Amendment’s guarantees of freedom of speech, press and religion are the cornerstone of liberty as we know it in America.
The Supreme Court, or at least most of it, seems to agree with me – more or less, most of the time, maybe. When it comes to First Amendment jurisprudence, the high court may be the epitome of Friends U Can’t Trust. That phrase happens to be the genesis of the apparel brand that its creator pronounces F-U-C-T, but which is written as FUCT. That brand, in turn, happens to be the subject of an important yet mildly disturbing decision the high court handed down this week.
On its face, the 6-3 majority decision penned by Justice Elena Kagan is a victory for the brand and its founder, artist Erik Brunetti. Brunetti sought to register FUCT as his brand’s trademark. The U.S. Patent and Trademark Office refused to register the mark because the applicable statute – Section 2a of the Lanham Act – prohibits registration of material that comprises “immoral, deceptive or scandalous matter,” among other things.
The PTO decision was likely doomed by the Supreme Court’s 8-0 decision two years ago that another provision of Section 2a, which prohibited registration of material that might “disparage” someone, is unconstitutional. In that case, a band of Asian American musicians tried to register their trademark under the name The Slants. The PTO denied the registration. The Supreme Court had no trouble concluding that the government had no business trying to prevent the band from reclaiming, on its own terms, a phrase that has been used as a slur against individuals or groups of Asian descent.
The 2017 decision in Matal v. Tam turns out to be an outlier, however, at least in terms of the court’s unanimity. With only a few isolated exceptions in my lifetime – notably the late Justices Hugo Black and William O. Douglas – Supreme Court justices have not been willing to give the Constitution’s free speech guarantee the broad and robust protection called for in the first item our founders placed in the Bill of Rights. Especially when it comes to words and images that make people uncomfortable or angry, the justices – or a significant minority among them – are often prepared to compromise in the interest of achieving what they see as government’s other legitimate goals.
And so it is in the FUCT case, Iancu v. Brunetti. In the majority ruling – a coalition of conservatives and liberals consisting of Justices Ruth Bader Ginsburg, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch and Kagan – the court cited its holding in Tam that the government cannot impose “viewpoint-based” restrictions on speech. Kagan wrote, “So the key question becomes: Is the ‘immoral or scandalous’ criterion in the Lanham Act viewpoint-neutral or viewpoint-based?” It is viewpoint-based, Kagan concluded, because “the Lanham Act permits registration of marks that champion society’s sense of rectitude or morality, but not marks that denigrate those concepts.”
To this, both Justice Samuel Alito and I say “meh,” albeit for different reasons. To the extent Kagan’s ruling could be read to justify a “viewpoint-neutral” prohibition on trademark registration – say, a blanket prohibition on registering marks belonging to films, or websites, or political parties – I firmly believe the First Amendment’s prohibition on laws that abridge free speech should knock them down. I suspect the conservatives in the majority would agree, but not necessarily the liberals, as indicated in the Citizens United line of cases.
The conservative Alito, on the other hand, joined the majority in its conclusion, but with a separate opinion in which we can practically see him scowling through the words on the page. “Viewpoint discrimination is poison to a free society,” Alito wrote. But when it comes to words that may repel or offend, he saw matters differently. “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. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary. The registration of such marks serves only to further coarsen our popular culture. But we are not legislators and cannot substitute a new statute for the one now in force.”
The dissenters – Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor – were perfectly prepared to rewrite the statute, or at least reinterpret it in a way that would let the PTO to tell Brunetti to get … well, I’ll stop here, lest Justice Alito accuse me of cheapening the public discourse. They would do this by defining “scandalous” to mean “obscene” or “vulgar.” (All three concurred in part with the majority decision.)
If something scandalous means only something that is obscene, it is outside First Amendment protection under the Supreme Court’s 1973 decision in Miller v. California. That case, rather remarkably, provides the definition of obscenity that still guides the courts today: whether something “appeals to the prurient interest” (that means sex, folks); whether the work depicts or describes a sexual act “in a patently offensive way”; and if the work taken as a whole lacks “serious literary, artistic, political, or scientific value.”
FUCT is not even a word. Its creator says it stands for a perfectly innocuous message. It just sounds bad, to certain people, when read out loud. They say it sounds “vulgar.” The First Amendment protects vulgar speech.
But only up to a point, said Breyer in his dissent, in which he wandered off into psychological science as interpreted by a philosophy major who attended Harvard Law School more than a half-century ago. “Scientific evidence suggest that certain highly vulgar words have a physiological and emotional impact that makes them different in kind from most other words ... These attention-grabbing words, though financially valuable to some businesses that seek to attract attention to their products, threaten to distract consumers and disrupt commerce,” Breyer wrote.
Roberts chose to try to slip out of the First Amendment debate via the back door. He argued that while trademark registration provides certain benefits – notably, advising the world that a certain mark is trademarked and potentially allowing its holder to avoid costly litigation – businesses are free to use and enforce unregistered trademarks. “No speech is being restricted; no one is being punished,” Roberts wrote. “The owners of such marks are merely denied certain additional benefits associated with federal trademark registration. The Government, meanwhile, has an interest in not associating itself with trademarks whose content is obscene, vulgar, or profane.” If you have trouble discerning why Roberts feels the government’s interest in this case should prevail when its interest was insufficient to allow it to block registration of The Slants’ trademark in Tam, all I can tell you is I have the same problem.
Essentially, all nine justices agreed that the Lanham Act’s prohibition on “immoral” trademarks is too broad to be constitutional. But when it came to regulating “scandalous” matter, their unity fell apart. This has always been the problem with Supreme Court First Amendment jurisprudence. Free speech is always free – up to a point. That point remains in the subjective eye of the justice who is writing from his or her own viewpoint and life experience.
Back in 1964, in Jacobellis v. Ohio, the Supreme Court reversed the obscenity conviction of an Ohio theater operator who presented Louis Malle’s film “The Lovers” (“Les Amants”). In that case, a fractured Supreme Court held that the film was not obscene, although it would be nine more years before it came up with a definition of obscenity in Miller. In the meantime, Justice Potter Stewart declared that only “hard-core pornography” qualified as obscene. So what is “hard-core pornography”? Or at least, what was it in 1964? Stewart famously punted.
“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so,” Stewart wrote. “But I know it when I see it, and the motion picture involved in this case is not that.”
It would not be fair to say we have not come a long since a theater owner could be criminally convicted for showing a Louis Malle film. But we have not come as far as I had hoped after Tam. Nor have we come nearly as far as we should toward giving the First Amendment the primacy in law that its constitutional place demands.