Sunday, January 6, 2018

by Anna Salvatore

The Supreme Court agreed to hear six cases on Friday. Two of them deal with partisan gerrymandering, one concerns whether the definition of “crime of violence”  is unconstitutionally vague in a federal law, another is a securities case, and then there’s Iancu v. Brunetti, a First Amendment challenge to the government’s ban on registering “scandalous” and “immoral” trademarks.

The brief in Iancu differs from the average Supreme Court brief in that it spends a page listing vulgar registered trademarks, including “SATAN’S PISS,” “PINK TACO,” and “WTF IS UP WITH MY LOVE LIFE?” But there are also serious legal arguments worth exploring. For example, Brunetti argues that the government is practicing viewpoint discrimination by accepting some scandalous trademarks and not others. Officials are “selectively approving or refusing profanity, excretory, and sexual content based upon the level of perceived offensiveness,” he wrote, as they tend to favor smiley face marks over middle fingers, polite humor over raunchy humor, and even pro-capitalism marks over anti-capitalism marks. He disagrees with the government on this point, since Solicitor General Noel Francisco claims that the Scandalous Clause is content-neutral.

To be clear, laws are almost never allowed to regulate speech based on its content. Laws that regulate based on content must survive strict scrutiny review, which requires the government to “prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” (Reed v. Town of Gilbert) Like Ronald Torreyes, the Yankees utility man who can play all over the infield, strict scrutiny is somewhat flexible. It applies when a government law bans protected speech and when the law only burdens protected speech.

In 2017, the Supreme Court decided a case similar to Iancu called Matal v. Tam.  There it held that the Patent Trade Office can’t deny trademark applications based on certain marks’ “disparaging” nature. The funky thing is that the Court couldn’t agree on how much scrutiny the Disparagement Clause deserved. Justice Alito opted out of the debate in his majority opinion, writing that it was unnecessary to apply strict scrutiny, intermediate scrutiny, or Justice Kennedy’s contrived “heightened scrutiny” if an even less stringent standard called Central Hudson would do. Yet certain parts of his opinion garnered four votes, not five, which leaves some doubt about whether his scrutiny analysis is binding law.

Parsing meaning from a fragmented opinion is difficult. If four justices vote for one level of scrutiny and four justices vote for another, which side controls? Marks v. United States (1977) tells us that the narrower interpretation is the holding, but as UCLA law professor Richard Re explains, “extracting precedent from fractured decisions can be like squeezing water from stone.”

Brunetti is trying to wring every last drop from the stone, but it’s not yielding any water.  You see, he thinks that the same level of scrutiny used in Tam, which dealt with the Disparagement Clause of the Lanham Act, should also be imposed on the Scandalous Clause. He’s just having a hard time understanding which level of scrutiny was used in Tam. “Does Justice Thomas’ concurrence, together with the four justices joining Justice Kennedy’s opinion, make five for scrutiny greater than intermediate scrutiny?” asked Brunetti. “Or instead, do we look at the justices’ reasoning (i.e., in a Venn diagram, the circles of the justices’ reasoning do not overlap). If the latter, was the level of scrutiny decided by an evenly divided court and therefore, without precedential effect, at least as to that issue?” In his brief, he asks the Court to provide an unambiguous bright line rule for applying the Marks rule.

Brunetti also tells the Court that the Scandalous Clause is unconstitutionally vague. He says the clause is too vague for two reasons: it doesn’t give fair notice about which marks are banned, and the Patent Trade Office applies it so inconsistently that the instructions must be unclear. However, the goverment’s reply brief in Tam counters that the vagueness standard is less strict when the law at issue doesn’t ban or punish speech. It says that the standard is relaxed if laws “simply [confer] benefits on speakers whose expression satisfies certain criteria,” like the PTO confers trademarks on applicants. After all, the PTO can’t punish you for proposing a vulgar trademark. It can only say, “Nah, we can’t accept this trademark. Sorry.”

If you’d like to learn more about the case, here are the hyperlinks for Brunetti’s writ of certiorari, the lower court opinion in Iancu, the Supreme Court’s opinion in Tam, and Richard Re’s tremendous paper called “Beyond the Marks Rule.” 

Thanks for reading.



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