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The Supreme Court does not need to hear the "word f" or an explicit racial insult to understand the linguistic minefield it was embarking on Monday when it was considering challenging the freedom of freedom. 39; Expression under federal law prohibiting the recording of "immoral" or "scandalous" trademarks.
"I do not want to go through the examples," Judge Neil M. Gorsuch told government lawyer Malcolm L. Stewart. "Truly not."
Judges generally do not need to tell lawyers to avoid lay people in argument, but they found themselves making hairpin wiggles to avoid vulgar language on Monday.
Los Angeles artist Erik Brunetti challenged the US Patent and Trademark Office's decision not to register the brand for its FUCT clothing line. His request had been rejected, as Stewart said gently, because it "would be perceived by an important public as the equivalent of the profane past participle of. . . perhaps the paradigmatic word of blasphemy in our language. "
[He wants to trademark a brand name that sounds like the F-word. The Supreme Court is listening.]
For more than a century, the Trademark Office has been ordered to refuse to register such marks. However, two years ago, the court unanimously ruled that a similar provision on the "bashing" of marks was an unconstitutional violation of the First Amendment.
Stewart tried to convince the judges that the outcome of this case – introduced by Simon Tam, founder of an American rock band of Asian descent, the Slants, and advantageous to the team of Washington Redskins professional football – did not dictate the outcome.
The ban on federal registration of outrageous brands does not constitute a restriction of speech, but a valid condition for participation in a federal program, Stewart said. Brunetti can call his clothing line as he wants, but the government does not have to support it by providing trademark registration, he said.
[Justices say rejecting ‘disparaging’ trademarks violates First Amendment]
However, questions were asked of Stewart about examples of seemingly arbitrary decisions on registered and unregistered marks, and how the government could decide when a "substantial" part of the public would be offended.
"In one way or another, it's always subjective," said Judge Sonia Sotomayor. Gorsuch said the decision-making was like "a coin".
Judge Elena Kagan said the standards set out in the law are "very broad. They include offensive elements because of the ideas they express. So, why is not this the end of things? And if the Congress wishes to adopt a more restrictive law, focused on vulgarity or profanity, Congress can do it. "
Perhaps, suggested Judge Ruth Bader Ginsburg, that the word imitating the Brunetti brand might not be immoral or outrageous to "say, at age 20," an audience it might target for its streetwear.
"If I understand correctly, these products are meant to attract a particular market, and if we focus on that market, the word is, according to their perception, the norm," said Ginsburg.
And she noted an anomaly in the memories: the office rejected some brands because they turned out to be outrageous and because they looked too much like the marks already approved.
But things got a little worse after Brunetti's lawyer, John R. Sommer, of Irvine, California, told the court that there was no way of "make a reasonable determination" about which marks are acceptable and which are not.
Judge Stephen G. Breyer was particularly concerned that racial slurs and rude words have a lingering effect.
"It's stored in a different place in the brain," said Breyer. "This leads to the conservation of speech. There are a lot of physiological effects with very few words. "
Brunetti said his brand represented Friends U Can not Trust. But when Sommer offered that the acronym was not really a secular word, Judge Samuel A. Alito Jr. did not buy it.
"Oh, come on," Alito said, adding, "We know what you know what he's trying to say."
A number of judges worried about whether brand recognition with profanity or racial slurs could lead to their more widespread use or be viewed as a sort of endorsement of the terms by the government.
"The racial slurs we all know, all of a sudden, suddenly appear in some places in the United States under the name of a product, in every bus it's advertised, in Times News Stands. Square. . . and where children and others see it, "Breyer said in describing his concerns.
"As they point out, that does not prevent anyone from saying [it]this prevents them from claiming a registered trademark, that is, a source of product recognized by the government. "
When Sommer stated that his client's merchandise would not be available at Target or Walmart, Chief Justice John G. Roberts Jr. stated that this did not solve the problem.
"It will be about people walking in the mall," Roberts said. "And, you know, parents trying to teach their kids not to use that kind of words will look and say," The word has a mark recognized by the federal government.
In his rebuttal, Stewart seemed to increase the stakes for the judges. He stated that the Patent and Trademark Office was dealing with the court's decision in Matal v. Tam, concerning the denigrating marks, as prohibiting the refusal of registration for racial insults.
"But with regard to the single most offensive racial affront, the OTP currently holds pending motions incorporating that word, pending the court's decision" in the Brunetti case, Stewart said.
The case is Iancu v. Brunetti.
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