Justices say law on offensive trademarks is unconstitutional

[Psihala]

The Supreme Court on Monday struck down part of a law that bans offensive trademarks in a ruling that is expected to help the Washington Redskins in their legal fight over the team name.

The justices ruled that the 71-year-old trademark law barring disparaging terms infringes free speech rights.

http://abcnews.go.com/Entertainment/...marks-48132272

[Esprise Me]

My thoughts are all over the place on this one.

At first I wasn't even sure this would be considered a First Amendment issue. The question isn't whether the offensive speech is being permitted; it's whether the government will enforce your claim on your intellectual property (though I suppose trademarks, unlike patents and copyrights, are more about protecting the consumer from deception than protecting the creator from infringement.) So I'm glad to see all 8 of the justices who took part in the decision agree that the government’s involvement in granting or denying trademark protection implicates the free speech clause.

My next thought was aligned with what ended up being Kennedy et al's concurrence that this is clearly viewpoint discrimination and therefore unconstitutional, full stop. (The government can sometimes impose reasonable time/place/manner restrictions on speech, sometimes even content-based restrictions in certain forums, but never viewpoint restrictions.)

But something Alito wrote for the majority made me rethink that, and now I'm really confused.

The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: ‘Down with racists,’ ‘Down with sexists,’ ‘Down with homophobes.’ It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.

So maybe it's not a viewpoint restrictions, if it would apply equally to anything negative or disparaging against any person, place, thing, or idea, including ideas disparaging other ideas. It's almost as though this law was just an ill-conceived, unconstitutionally vague overbroadening of the line of cases exempting obscenity from the protections of the First Amendment.

It's not really that important, but the fact that there was no majority opinion on whether this was or wasn't viewpoint discrimination means this case won't constitute binding authority on that particular issue, which means that part of the inquiry will have to be kicked down the road. This matters because the line between content or subject matter- based restrictions (occasionally permissible) and viewpoint-based restrictions (impermissible) is, in practice, sometimes blurry. Some cynics (ahem) might even say the distinction at times comes down to whether the court wants to uphold the restriction or not. There are clear-cut cases (if you allow a Young Republicans club to use your classrooms to hold student meetings at lunch, you must do the same for the Young Democrats, at least if you're a public school), but other cases are less obvious or intuitive (if you allow the inclusive, non-proselytizing, wholly unobjectionable Key Club, do you have to also allow a Christian club? SCOTUS says yes, and moreover says it's viewpoint-based, not just content-based if you don't--never mind if you're equally hostile to all religious groups.) The jurisprudence around content vs. viewpoint could use some fleshing out, IMO, especially where religion is not involved, but we were one justice shy of getting that this time.

[erwins]

I found this article pretty interesting, about what the decision in the trademark case, as well as another first amendment case involving sex offenders' access to the internet, can tell us about the upcoming gerrymandering case.

http://www.slate.com/articles/news_a...amendment.html

[Esprise Me]

I hardly dare hope for anything in politics these days, but that could be huge.

[Dreams of Thinking Machines]

Finally I can trademark my adult diaper brand, "Just Alito More S***: The adult diaper that literally eats s***."

[Esprise Me]

The other thought I had on this was that it's a little surprising, though certainly not unprecedented, that this law was on the books so long without a successful challenge, only to be shot down unanimously. The plaintiffs pointed out that several other offensive names had been trademarked, and much of the commentary has focused on how this case will affect the Redskins in their recent trademark battle, so maybe this was just one of those laws that was rarely if ever enforced, and therefore rarely if ever challenged, until some woke person in the trademark office decided to dust it off and take it for a spin.