Supreme Court: Freedom of speech still applies to offensive speech

July 05, 2019 | By DANIEL ORTNER
Supreme Court 4

The First Amendment protects your right to say things that are crude, disparaging, immoral, or scandalous. It protects George Carlin’s monologues the same as Shakespeare’s sonnets. And it also means the government cannot deny you a trademark just because it doesn’t like your brand name or message.

Two years ago, the Supreme Court struck down a prohibition on “disparaging” trademarks and ruled that the U.S. Patent and Trademark Office (USPTO) could not refuse a trademark for the rock band “The Slants.” Last week, in Iancu v. Brunetti, the Supreme Court took that decision to its logical conclusion by striking down two provisions that stopped the USPTO from granting “immoral” or “scandalous” trademarks.

The immediate beneficiary of the Supreme Court’s decision will be the edgy streetwear brand FUCT. But the long-term beneficiary of this decision will be people—including many PLF clients—who do not want government bureaucrats determining which ideas are permissible and which are distasteful. For instance, the Supreme Court’s well-reasoned decision will hopefully help PLF’s client Jon Kotler defeat California’s absurd decision to ban a personalized license plate promoting the Fulham soccer team because the plate might offend California drivers.

In a 6-3 decision, the Supreme Court agreed with the Pacific Legal Foundation brief, which stated that government officials shouldn’t be allowed to determine whether speech is immoral or scandalous. The USPTO had rejected FUCT’s trademark because it decided the brand’s images were “anti-social” and “lacking in taste.” Presumably, if the brand had used images of rainbows, puppies, and unicorns, then the mark would have been approved.

In other words, as Justice Elena Kagan explained in the majority opinion, the law “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.” But such characterizations depend solely on the personal, subjective judgments of government employees.

Also, as the Supreme Court stated, government censorship like this is inconsistent. For instance, USPTO officials often rejected trademarks that used religious names for secular products, such as “Madonna” for wine, but approved religious names for products that suggested religious faith, like a game called “PRAISE THE LORD.”

Similarly, the USPTO rejected trademarks in favor of drug legalization while granting trademarks favoring abstinence from drugs. This policy of “disfavoring ideas that offend” clearly violates the First Amendment.

As Justice Samuel Alito explained in his concurring opinion, “Viewpoint discrimination is poison to a free society,” and laws that allow for government bureaucrats to restrict disfavored viewpoints “can easily be exploited for illegitimate ends.” Fortunately, the court made clear that viewpoint-discriminatory laws have no place in our government. And PLF will continue the fight against government censorship.

Along with many of our clients, PLF fights against government bureaucrats overstepping their power and violating people’s freedom of speech. The victory in Brunetti will translate to victory for many PLF clients—but more importantly, it is a victory for freedom of speech.