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CamrnCrz1974
Joined: 18 Nov 2004
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CamrnCrz1974
Joined: 18 Nov 2004
Posts: 18371
Location: Phoenix
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 Posted: 06/26/19 12:02 pm ::: |
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These four letters spawned five Supreme Court opinions
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| This result is a clear victory for free speech, but it also shows that some of the justices are hesitant to protect all forms of offensive expression. |
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| Writing for a six-justice majority in Iancu v. Brunetti, Justice Elena Kagan concluded the ban on such trademarks was unconstitutional because it "disfavors certain ideas." Indeed, a key principle of First Amendment law is that the government cannot engage in what Kagan called "viewpoint-based" discrimination. In other words, the government must not take sides on any subject -- limiting a person's ability to choose a trademark based on individual justices' ideas of morality. |
https://www.cnn.com/2019/06/24/opinions/supreme-court-decision-fuct-first-amendment-calvert/index.html
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CamrnCrz1974
Joined: 18 Nov 2004
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Location: Phoenix
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| Posted: 06/26/19 12:03 pm ::: |
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Iancu v. Brunetti
Case No. 18–302
Argued April 15, 2019
Decided June 24, 2019
https://www.supremecourt.gov/opinions/18pdf/18-302_e29g.pdf
HOLDING (excerpts from introductory summary of holding from the SCOTUS opinion):
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| In Matal v. Tam, 582 U. S. ___, this Court declared unconstitutional the Lanham Act’s ban on registering marks that “disparage” any“person[ ], living or dead.” §1052(a). A divided Court agreed on two propositions. First, if a trademark registration bar is viewpoint based, it is unconstitutional. And second, the disparagement bar was viewpoint based. |
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| The “immoral or scandalous” bar similarly discriminates on the basis of viewpoint and so collides with this Court’s First Amendment doctrine. Expressive material is “immoral” when it is “inconsistent with rectitude, purity, or good morals”; “wicked”; or “vicious.” So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts. And material is “scandalous” when it “giv[es] offense to the conscience or moral feelings”; “excites reprobation”; or “calls out condemnation.” So 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. The statute, on its face, distinguishes 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. This facial viewpoint bias in the law results in viewpoint discriminatory application. The PTO has refused to register marks communicating “immoral” or “scandalous” views about (among other things) drug use, religion, and terrorism. But all the while, it has approved registration of marks expressing more accepted views on the same topics. |
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| The Government says the statute is susceptible of a limiting construction that would remove its viewpoint bias. The Government’s idea is to narrow the statutory bar to “marks that are offensive [or] shocking[ ] because of their mode of expression, independent of any views that they may express,” which would mostly restrict the PTO to refusing marks that are lewd, sexually explicit, or profane. But this Court cannot accept the Government’s proposal, because the statute says something markedly different. The “immoral or scandalous” bar does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose “mode of expression,” independent of viewpoint, is particularly offensive. To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one. And once the “immoral or scandalous” bar is interpreted fairly, it must be invalidated. |
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GlennMacGrady
Joined: 03 Jan 2005
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| Posted: 06/27/19 1:51 pm ::: |
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When I was teaching trademark law 30 years ago at FSU, I raised in class the issue of whether the federal trademark statute's prohibitions on "disparaging", "immoral" and "scandalous" marks were unconstitutional restrictions on First Amendment free speech. In the past two years, the Supreme Court has now answered "yes" in all three cases -- which I've always thought to be the right answers.
Two years ago in Matal v. Tam, the "Slants" case, the Court held the "disparaging" prohibition unconstitutional. This month in the "FUCT" case the Court predictably followed that line of reasoning and held the "scandalous" and "immoral" prohibitions in the trademark law unconstitutional.
A practical application of these rulings in the sports world is that federal trademarks cannot be denied to Indian names for sports teams, such as the Washington Redskins.
Multiple opinions by different Supreme Court judges within the same case have now been routine for generations, and this phenomenon seems to be getting worse as the Supreme court becomes more overtly divided by the culture wars and political partisanship. This makes constitutional litigation almost an exercise in "fake law". After 230 years, there are so many Supreme Court decisions, with so many contradictory majority opinions, plurality opinions, concurring opinions and dissenting opinions, that lawyers on both sides of any case ambiguous enough to make it to the Supreme Court can almost always find prior Supreme Court opinion language to support their side of the case. The concept of stare decisis (precedent) almost becomes meaningless in a practical sense. |
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