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We have to be careful about how we report on this next Supreme Court ruling for reasons that you are about to understand. NPR legal affairs correspondent Nina Totenberg is going to tiptoe through this 6-3 decision that has free speech advocates cheering. The case is about trademarking, quote, "scandalous and immoral" brand names.
NINA TOTENBERG, BYLINE: The brand name at issue in the case is F-U-C-T. You can say it. I can't. It's a casual clothing line owned by designer Erik Brunetti - hoodies, T-shirts, et cetera - all with that brand name prominently displayed. Brunetti has been trying to get federal trademark protection for the line for years. With it, he will now have more clout in shutting down knockoffs.
But the case he brought to the Supreme Court produced five separate opinions today. Justice Elena Kagan wrote the majority opinion, joined by the court's two most conservative Justices, Clarence Thomas and Neil Gorsuch, plus its most liberal justice, Ruth Bader Ginsburg, and another conservative justice, Samuel Alito, who wrote separately.
In dissent were two of the court's liberal justices, Sonia Sotomayor and Stephen Breyer, plus conservative Chief Justice John Roberts. In the aftermath of the decision, trademark attorney Jacqueline Lesser expects a rush to get trademark protection now for lots of vulgar and racist brands.
JACQUELINE LESSER: I do believe that this will open the door to indiscriminate applications for terms and words that many or most of us find to be really awful.
TOTENBERG: Ilya Shapiro of the libertarian Cato Institute pooh-poohs that idea, noting there are lots of other restrictions on trademarks.
ILYA SHAPIRO: I'd like to see the business plan. You can't get a trademark for something that's already in common use or generic in a certain way.
TOTENBERG: Today's decision produced a fascinating debate among the justices. All nine agreed that the federal law banning immoral trademarks was just too broad, that it would allow the government to grant trademarks to messages it approved and denied trademarks for messages it disapproved. But the ban on scandalous trademarks - well, that's where the unanimity fell apart. Justice Kagan, writing for the majority, looked to dictionary definitions of scandalous - disgraceful, offensive, disreputable for instance.
Put that with immoral, she said, and what you have is a statute, on its face, that distinguishes between conventional moral standards and those hostile to them. Denied trademark protection, for instance, was, you can't spell health care without T-H-C. But granted trademark protection was, say no to drugs. Granted trademark protection was a game called, Praise the Lord, and a line of clothing called, Jesus Died For You, but denied was, Bong Hits for Jesus.
Summing up, Kagan said, we hold that the law violates the First Amendment guarantee of free speech because it disfavors certain ideas. Justice Alito provided the sixth vote, but he wasn't happy about it. He was signing on, he said, because viewpoint discrimination is poison to a free society and because he sees free speech as under attack in modern America. But he specifically said the court's decision does not prevent Congress from adopting a statute that would ban vulgar terms that play no real part in the expression of ideas. The F-U-C-T brand, he said, signifies nothing except emotion and a severely limited vocabulary.
The three dissenters would have interpreted the existing statute as limited to profanity and vulgarity, perhaps even specific words. And under that interpretation, the dissenters would have upheld denying trademark protection for the F-U-C-T brand. Congress, of course, could try to do that now by enacting a very narrow law that bans trademarks for profane and obscene speech.
Or it could enact a trademark ban for certain words, even the N-word. Congress has taken similar action to narrow other statutes struck down on First Amendment grounds. But as Genevieve Lakier of the University of Chicago Law School observes, it's never simple.
GENEVIEVE LAKIER: Vulgarity expresses a point of view. That's one of the reasons the government often wants to censor it.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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