June 25, 2019
Regulars readers of this blog know that I am about as close to a First Amendment absolutist as there is. I just don’t think that the government should be in the business of deciding what a person can read or publish or say. And, yes, the price is that ignorant and hateful people say ignorant and hateful things. Better than punishing people for saying unpopular things.
That’s why I found yesterday’s decision by the U.S. Supreme Court in Iancu v. Brunetti so satisfying.
The case began when a fellow named Eric Brunetti tried to obtain trademark protection for his streetwear brand, which he called (wait for it) FUCT. The U.S. Patent and Trademark Office rejected the application on the grounds that it violated a federal law prohibiting trademark registration for marks deemed “immoral” or “scandalous.”
The Supreme Court ruled that Brunetti gets his trademark.
Writing for the majority, Justice Kagan wrote that the “immoral” or “scandalous” standard “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.”
Perhaps most interesting was the make-up of the six justices who comprised the majority, since it represented a virtual smorgasbord of judicial ideologies: joining Kagan were the trusty liberal Ginsberg, the staunchly conservative pair of Alito and Thomas, and the two Trump appointees, Gorsuch and Kavanaugh.