The Supreme Court on Thursday rejected a California lawyer’s attempt to trademark the phrase “Trump too short.”
The decision was unanimous in its final outcome but was sharply divided over its reasoning, as the justices disagreed over whether a history-based methodology recently introduced in a Second Amendment case should be used to decide First Amendment disputes should.
The case involved a federal law that prohibits the registration of trademarks “that identify a specific living person except with his or her written consent.”
“We believe only that history and tradition establish that the particular limitation before us,” Justice Thomas wrote for five justices, “does not violate the First Amendment.”
Justice Sonia Sotomayor, in a concurring opinion that reads at times like a dissent, sharply criticized the “vagueness of the Court’s inquiry into history and tradition, which could aptly be described as the equivalent of walking into a crowded cocktail bar.” Partying and over everyone’s heads look beyond to find your friends.”
“To make matters worse,” she continued, “the five-judge majority conducting this inquiry into tradition as a dispositive found her friends at a crowded party to which she was not invited. This majority has drawn consistent conclusions from its historical evidence, all without any guidance from the litigants or the court below.”
In his trademark application, attorney Steve Elster said he wanted to convey the message that “some features of President Trump and his policies are minute.” Mr. Elster has used the phrase on the front of T-shirts that had a list of Mr. Trump’s positions on the back. For example: “Klein on civil rights.”
Justice Thomas dryly mentioned the basis for the reprimand. “The mark is based on an exchange between then-candidate Donald Trump and Senator Marco Rubio during a 2016 presidential primary debate,” he wrote, without elaborating.
Mr. Rubio, Republican of Florida, said that Mr. Trump had “small hands,” adding: “And you know what they say about men with small hands.”
During a presidential debate, Mr. Trump addressed Mr. Rubio’s criticism.
“Look at these hands, are they little hands?” Mr. Trump said, showing them. “And he referred to my hands: ‘If they’re small, something else must be small.’ I guarantee you there will be no problem. I guarantee.”
The issue in this case was not whether Mr. Elster could use the phrase, on T-shirts or otherwise. It was about whether he could register it as a trademark.
The Patent and Trademark Office rejected Mr. Elster’s application. However, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled unanimously that the office must approve the registration under the First Amendment.
“The government has no legitimate public interest that could overcome the First Amendment’s protection for the political criticism embodied in Elster’s mark,” Judge Timothy B. Dyk wrote for the court. “Due to the president’s status as a public official and because Elster’s sign expresses its rejection and criticism of the then-president’s approach to government, the government has no interest in discriminating against Elster’s speech.”
In previous cases, the Supreme Court ruled that other provisions of trademark law conflicted with the First Amendment. But these cases, Justice Thomas wrote, were about viewpoint discrimination.
In 2019, for example, it rejected a provision banning the registration of “immoral” or “scandalous” trademarks.
This case involved a clothing line sold under the brand name FUCT. When the case was heard, a government lawyer told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”
Justice Elena Kagan, who sat for a six-justice majority, did not dispute this. However, she said the law was unconstitutional because it “rejects certain ideas.”
A fundamental principle of First Amendment law, she wrote, is that the government should not make distinctions based on the viewpoints of speakers.
In 2017, an eight-judge court unanimously struck down another provision of the trademark law. This banned brands that denigrate living or deceased people as well as “institutions, beliefs or national symbols”.
The Matal v. Tam involved an Asian-American dance-rock band called Slants. The Court largely split 4-4 in its reasoning, but all justices agreed that the provision at issue in this case violated the Constitution because it took sides based on the speakers’ positions.
The new case, Vidal v. Elster, No. 22-704, is different, Justice Thomas wrote. The challenged provision, which applies to both positive and negative references to living persons, does not discriminate on the basis of viewpoint.
But that wasn’t the end of the matter. As Justice Thomas wrote in a sweeping 2015 decision, Reed v. Town of Gilbert, even content-based laws are presumptively unconstitutional.
On Thursday, he appeared to deviate from that position, at least on trademark law. He based his conclusion on a comprehensive review of historical restrictions on brand names.
“This history and tradition are sufficient to conclude that the Name Clause—a content-based but perspective-neutral trademark restriction—is consistent with the First Amendment,” Justice Thomas wrote. “In this case, we don’t need to look any further.”
Justice Sotomayor, joined by Justices Kagan and Ketanji Brown Jackson, agreed that the provision was constitutional. But she said the majority’s reasoning was alarming.
“This court has never applied this type of test of history and tradition to a challenge to free speech,” she wrote.
The test, Justice Sotomayor wrote, was borrowed from the court’s 2022 decision in New York State Rifle Association v. Bruen. “The majority seeks to reassure litigants and lower courts that a ‘history approach’ is useful and practical here,” she wrote.
Justice Sotomayor said the aftermath of the Bruen decision showed the new methodology was wrong. “One need only read a handful of lower court decisions using Bruen to understand the confusion this court has caused,” she wrote.
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2024-06-14 03:31:34
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