Wed, 26 Jun 2019

Supreme Court Now Says That The Trademark Office Can't Reject 'Immoral Or Scandalous' Trademarks
Furnished content.


This should have been pretty much a foregone conclusion after the Supreme Court's ruling two years ago in Simon Tam's case about The Slants trademark. In that case, the Supreme court ruled that part of the Lanham Act that said the government could deny trademarks on "disparaging" marks was an unconstitutional violation of the First Amendment. However, that ruling was a bit messy. The court agreed that the law was unconstitutional under the 1st Amendment, but had two different theories as to why, neither of which got a majority. So the specific law that said the PTO could reject "disparaging" marks was tossed, but technically other content-based restrictions, such as those for "immoral and scandalous" remarks remained on the books. So, pretty quickly that got challenged as well, and now the Supreme Court instead has said that's unconstitutional too.The basic reasoning should be obvious: under the First Amendment, the government cannot be in the business of judging the appropriateness of content (for what it's worth, this is also why Senator Josh Hawley's silly bill is unconstitutional). Here, the majority decision, written by Justice Kagan, made pretty quick work of the ruling, basically just saying that the same thing that they said in the Tam case applies here as well.

If the immoral or scandalous bar similarly discriminates on the basis of viewpoint, it must also collide with our First Amendment doctrine. The Government does not argue otherwise. In briefs and oral argument, the Government offers a theory for upholding the bar if it is viewpoint-neutral (essentially, that the bar would then be a reasonable condition on a government benefit). See Brief for Petitioner 14-26. But the Government agrees that under Tam it may not deny registration based on the views expressed by a mark. Tr. of Oral Arg. 24. As the Court's Tam decision establishes, the Government says,the criteria for federal trademark registration must be viewpoint-neutral to survive Free Speech Clause review. Pet. for Cert. 19. So the key question becomes: Is the immoral or scandalous criterion in the Lanham Act viewpoint-neutral or viewpoint-based?It is viewpoint-based. The meanings of immoral andscandalous are not mysterious, but resort to some dictionaries still helps to lay bare the problem. When is expressive material immoral? According to a standard definition, when it is inconsistent with rectitude, purity,or good morals; wicked; or vicious. Webster's New International Dictionary 1246 (2d ed. 1949). Or again, when it is opposed to or violating morality; or morally evil. Shorter Oxford English Dictionary 961 (3d ed. 1947). 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 when is such material scandalous? Says a typical definition, when it giv[es] offense to the conscience or moral feelings; excite[s] reprobation; or call[s] out condemnation. Webster's New International Dictionary, at 2229. Or again, when it is shocking to the sense of truth, decency,or propriety; disgraceful; offensive; or disreputable. Funk & Wagnalls New Standard Dictionary 2186 (1944). 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. Put the pair of overlapping terms together and 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. The statute favors the former, and disfavors the latter. Love rules? Always be good? Registration follows. Hate rules? Always be cruel? Not according to the Lanham Act's immoral or scandalous bar.The facial viewpoint bias in the law results in viewpoint-discriminatory application.

How, then, can the Government claim that the immoral or scandalous bar is viewpoint-neutral? The Government basically asks us to treat decisions like those described above as PTO examiners' mistakes. See Brief for Petitioner46. Still more, the Government tells us to ignore how the Lanham Act's language, on its face, disfavors some ideas. In urging that course, the Government does not dispute that the statutory languageand words used to define ithave just that effect. At oral argument, the Government conceded: [I]f you just looked at the words like 'shocking' and 'offensive' on their face and gave them their ordinary meanings[,] they could easily encompass material that was shocking [or offensive] because it expressed an outrageous point of view or a point of view that most members of society reject. Tr. of Oral Arg. 6. But no matter, says the Government, because the statute is susceptible of a limiting construction that would remove this viewpoint bias. Id., at 7 (arguing that the Court should attempt to construe [the] statute in a way that would render it constitutional). The Government's idea, abstractly phrased, is to narrow the statutory bar to marks that are offensive [or] shocking to a substantial segment of the public because of their mode of expression, independent of any views that they may express. Id., at 11 (emphasis added); see Brief for Petitioner 27-28. More concretely, the Government explains that this reinterpretation would mostly restrict the PTO to refusing marks that are vulgarmeaning lewd, sexually explicit or profane. Id., at 27, 30. Such a reconfigured bar, the Government says, would not turn on viewpoint, and so we could uphold it.But we cannot accept the Government's proposal, because the statute says something markedly different. This Court, of course, may interpret ambiguous statutory language to avoid serious constitutional doubts.

For the reasons explained in the opinion of the Court, the provision of the Lanham Act at issue in this case violates the Free Speech Clause of the First Amendment because it discriminates on the basis of viewpoint and cannot be fixed without rewriting the statute. Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be immoral or scandalous can easily be exploited for illegitimate ends. Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary.The registration of such marks serves only to further coarsen our popular culture. But we are not legislators and cannot substitute a new statute for the one now in force.

The coming rush to register such trademarksand the Government's immediate powerlessness to say nois eminently avoidable. Rather than read the relevant text as the majority does, it is equally possible to read that provision's bar on the registration of scandalous marks to address only obscenity, vulgarity, and profanity. Such a narrowing construction would save that duly enacted legislative text by rendering it a reasonable, viewpoint-neutral restriction on speech that is permissible in the context of a beneficial governmental initiative like the trademark-registration system. I would apply that narrowing construction to the term scandalous and accordingly reject petitioner Erik Brunetti's facial challenge

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