[Trigger warning: This column uses profanity.]
Two years ago, in Matal v. Tam, the Supreme Court invalidated a provision of the Lanham Act that forbade registration of trademarks that “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” The Patent and Trademark Office (PTO) had invoked the provision to deny registration to the band The Slantson the ground that the name was a slur for Asian Americans. Although the members of The Slantsare themselves Asian Americans who use the term ironically, that was not the basis for the Court’s holding. Rather, the justices said that the anti-disparagement provision impermissibly targeted ideas based on the offensiveness of their content, in violation of the First Amendment.
This week, in Iancu v. Brunetti,the Supreme Court extended Matal by invalidating another provision of the Lanham Act. The latest statutory casualty prohibits registration of “immoral or scandalous” trademarks. Consequently, the Court reversed the PTO’s decision rejecting registration of a trademark for the “FUCT” clothing line.
As defined in the statute and applied by the PTO, Justice Kagan wrote for the majority, the immoral-or-scandalous provision distinguished based on viewpoint. She gave examples of the PTO denying pro-drug trademarks while granting anti-drug ones and denying anti-religious trademarks while granting pro-religious ones. Even apart from the pattern of PTO decisions, the majority emphasized that the text of the relevant provision of “the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety.” Thus, like the provision in Matal, this one too was impermissibly viewpoint-based.
Yet Justice Kagan’s opinion left open the possibility that a more precisely targeted statute could be written to deny registration of lewd, sexually explicit, or profane trademarks. Indeed, four justices—Chief Justice Roberts and Justices Breyer, Alito, and Sotomayor—wrote separate concurrences and dissents indicating that they would definitely uphold a provision that were so limited. (Roberts, Breyer, and Sotomayor thought the “scandalous” provision could be construed to limit it to profanity, but the majority said that would require rewriting rather than construing it.) Accordingly, if Congress now amends the Lanham Act to target profanity directly, there is a substantial chance that the Court will uphold the new provision.
Does that make sense? Should the government be permitted to deny trademark registration to the likes of FUCT (or, for that matter, FUCKED), under a more narrowly worded statute? Maybe, but to do so it would have to dramatically curtail a nearly fifty-year-old precedent.
“Fuck the Draft”
In 1968, during the Vietnam War, Paul Robert Cohen wore a jacket with the slogan “Fuck the Draft” while in the corridor of a California courthouse. For that crime, he was convicted on state disturbing-the-peace charges. The Supreme Court overturned his conviction in the 1971 case of Cohen v. California. Writing for the majority, Justice Harlan explained that allowing the conviction to stand would run counter to core principles of free speech. He asked:
How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.
Justice Harlan—who was, overall, a moderate conservative—was persuasive that profanity should be protected speech. So how would it be possible to reach a different conclusion with respect to trademark registration? The concurrences and dissents in Iancuoffer a number of possible answers, but none is compelling.
First, it might be noted that the inability to register a trademark does not actually forbid one’s use of the trademark; it merely denies the would-be registrant certain benefits of registration. Indeed, trademarks in general can be thought to limit speech. When the PTO denies exclusive rights to use “FUCT” on clothing, it increases rather than decreases the number of firms and persons who can attach the “FUCT” label to their goods.
Yet the foregoing argument cannot be right, because it leads to the conclusion that trademark registration denial never violates the First Amendment. The argument would preserve Cohen but at the cost of overruling the much more recent decisions in Matal and Iancu.
Criminal Versus Civil Sanctions
Justice Sotomayor offers a second possible ground for distinguishing Cohen. She says that Cohen faced a criminal penalty, whereas the penalty of trademark-registration-denial is much milder. And it is true that the Court in Cohensummarized its holding in a way that made reference to the criminal nature of the prohibition.
But neither the logic nor any of the other language of the Cohen case makes the penalty relevant. Justice Harlan’s point that no clear line divides profanity from non-profanity does not in any way depend on the penalty.
Moreover, Justice Harlan’s point about line-drawing dovetails with a further point he made about subtle censorship. He criticized “the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”
Consider another illustration (for which I feel obliged to issue another trigger warning). I live in a college town populated by a fair number of eccentrics. Last week I saw a man walking in public wearing a shirt with the phrase “Jesus is a cunt”in large clear letters. I am not a Christian, but I was nonetheless shocked and offended on behalf of my Christian neighbors.
Still, if that shirt can be banned or discouraged through trademark registration denial (indulging the dubious assumption that such denial discourages use of the phrase), what else can be banned or denied trademark registration? How about “Jesus never existed,” “the Bible condones slavery,” or cartoons that depict the prophet Mohammed in a negative light? Use of a four-letter word undoubtedly has shock value, but one suspects that Justice Harlan is right: the objection to the profanity cannot readily be separated from an objection to the message conveyed.
Government Speech and Children
We can readily dispatch the remaining two justifications that the concurring and dissenting justices offer for allowing the government to deny trademark registration to profanity. Roberts, Breyer, and Sotomayor each suggest that the government has an interest in disassociating itself from offensive messages. This concern is misplaced.
In Matal, the Court rightly rejected the claim that trademark registration renders the trademark government speech. A too-expansive government speech doctrine would eviscerate free speech protection for individuals. As Justice Alito explained for the Court in Matal, “[i]f private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.”
Might the government nonetheless have an interest in disassociating itself from distasteful messages contained in registered trademarks? I suppose so, if anyone actually perceived such registration as government endorsement. And even then, a simple blanket disclaimer by the PTO ought to suffice—as it does when private actors complain about misattribution.
Finally, Justices Breyer and Sotomayor invoke an interest in protecting children from seeing profanity. Yet there were “children present in the corridor” in Cohen. And again, it is important to remember that denial of trademark registration has only an indirect and uncertain effect on the likelihood that anyone—child or adult—will see the offending material.
* * *
If Congress accepts the invitation to rewrite the Lanham Act to forbid trademark registration of profanity as such, the Court should close the door it left open in Iancu. Profanity can coarsen our public discourse, but regulating it risks still greater damage.