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Justice Ruth Bader Ginsburg action figure.
Reuters/Brendan McDermid
Justice Ruth Bader Ginsburg and her colleagues prepare to be scandalized.
FUCT UP

The US Supreme Court will review the government’s right to be a prude

By Ephrat Livni

The US Supreme Court is not a bawdy body. Although entrusted with safeguarding the First Amendment right to free speech, justices avoid vulgarity themselves. But an upcoming case will force the judges to consider whether the government can impose its sense of decorum upon private businesses.

At the center of the case is a California clothing company called FUCT, owned by Erik Brunetti. FUCT is an acronym for Friends yoU Can’t Trust, according to Brunetti, who has been using the name since 1990. But in 2011, when he finally applied for federal registration of the mark, the request was denied by the US Patent and Trademark Office (USPTO), “on the ground that the mark [FUCT] would be perceived as equivalent to the vulgar word for which it is a homonym,” as the USPTO explains in its petition to the Supreme Court.

In other words, most people will interpret FUCT as “fucked.” And despite the free speech guarantee of the First Amendment, the government doesn’t register marks that are scandalous or immoral, based on the 1946 Lanham Act which codified federal intellectual property law. That puts government workers at the USPTO in the somewhat awkward position of deciding what is moral.

Brunetti fought the denial of his trademark registration and argued in a successful appeal in federal circuit court that the trademark office was violating free speech law. And in January, the high court agreed to hear the case.

What’s a moral mark?

To determine the morality of a mark, the USPTO asks whether a “substantial composite of the general public would find the mark scandalous” or “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable; giving offense to the conscience or moral feelings; or calling out for condemnation.” Vulgar marks are those “lacking in taste, indelicate, [and] morally crude.” The government, which doesn’t refer to morally crude marks in the body of its filings but does provide examples in an appendix, has refused to register trademarks such as “cunt,” “tasty twats” and “shit life,” among others.

An attorney at the trademark office refused registration of FUCT, determining it “will be perceived as a scandalous term.” Affirming this conclusion, the Trademark Trials and Appeals Board referred to the company’s marketing, noting use of “strong, and often explicit, sexual imagery that objectifies women and offers degrading examples of extreme misogyny.” FUCT, the board found, promotes “extreme nihilism—displaying an unending succession of anti-social imagery of executions, despair, violent and bloody scenes including dismemberment, hellacious or apocalyptic events, and dozens of examples of other imagery lacking in taste.” It found that respondents’ use of the mark would “be perceived by his targeted market segment” as the obscene word for which it is a homonym. FUCT in 2001, for example had an advertisement that showed a man with his hand at a child’s throat accompanied by the slogan, “for the kids.” A 1997 ad was a simply drawn illustration of a man with “Hello, can I slit your throat?” written on his forehead.

But of course, taste is necessarily a matter of debate. Norms about what constitutes moral or vulgar speech change over time and are dependent on context. An ass is a small horse-like creature or a curse, for example. A bitch is a female dog or an insult or a word re-appropriated by feminists. Back in the 16th century, the worst curse in English was “zounds,” in reference to God’s wounds or the wounds of Jesus Christ on the cross. Today anyone who uses “zounds” would be considered archaic and cute if they were understood at all.

Not only that, there’s the question of just how much speech policing the government can do in a land where language is free. Indeed, while FUCT was being considered in federal court, the US Supreme Court was debating another section of the Lanham Act that prohibits registration of marks for disparaging speech and found it should be allowed.

The right to disparage

In 2017, the US Supreme Court decided Matal v. Tam (pdf)a somewhat similar matter that has created confusion about trademark law’s linguistic prohibitions. That case examined the denial of a trademark for the rock group “The Slants,” led by Simon Tam, who chose this name to “reclaim” the derogatory term used to disparage East Asians but was denied a trademark precisely because it’s disparaging.

Tam argued that the disparagement clause violated the First Amendment’s guarantee of free speech, and the Supreme Court justices all agreed. But the court didn’t address the “Scandalous Clause,” just disparagement. That leaves both trademark applicants and the USPTO unclear about just how far the ruling extends.

In Matal v. Tam, the court struggled with the question of whether trademarks are private, commercial, or government speech, each category of which is subject to a different level of scrutiny under review and different limitations under the law. The trademark office claimed that trademarks are a kind of subsidy granted by authorities, which makes them a form of government speech. And members of Congress agreed in an amicus brief (pdf) arguing that by registering discriminatory trademarks, the government was essentially approving discrimination. The brief notes, “This case is about whether the government must put its stamp of approval on particular types of words—it is not about restricting speech.”

But the court rejected this position in part based on the nature of trademark law. By registering a trademark, the government isn’t approving the mark. It is simply affirming its existence. Technically, a trademark is created through use, not federal registration, and registration with the USPTO simply adds protections for a rights holder.

Ultimately, the justices determined that trademarks weren’t government speech. But some of them also took issue with the disparagement clause itself, arguing that it was too broad and too vague to be constitutional, which has implications for “scandalousness” as well. Justice Anthony Kennedy, joined by justices Ginsburg, Sotomayor, and Kagan, wrote that the disparagement clause is a kind of “viewpoint discrimination,” which silences political debate and unconstitutionally limits speech. Government employees shouldn’t be making value judgements about the quality of speech, as the USPTO was doing, Kennedy concluded.

Which brings us back to FUCT. When the trademark office appealed to the Supreme Court, Brunetti urged the justices to grant the government’s request for review to clarify any confusion surrounding trademarks and vulgar language. Basically, what both parties are asking is whether the finding that the disparagement clause is unconstitutional also extends to the “Scandalous Clause.”

Policing speech

Brunetti’s brief argues that the USPTO is inconsistent in its application of the scandalous marks standard, and that the implications extend far beyond trademark law. Upholding the Scandalous Clause would mean limits on all kinds of unpopular speech, including allow the government to refuse to grant copyright to works it deems scandalous and allowing state and local authorities to block unpopular organizations advancing controversial causes, or causes unpopular with some of the public,by refusing to grant building permits, charitable solicitation registrations, business licenses, or sales tax permits. 

FUCT’s representatives also argue that the government shouldn’t be determining what constitutes scandalousness at all. When deciding whether to register or refuse a trademark, the government is picking and choosing between vulgarities. Some profanity, excretory, and sexual matter is granted registration, like the word “bitch” and “damn,” as well as marks that use “fuck,” provided the word’s misspelled or not spelled out. (For example, FCUK, FWORD, and WTF IS UP WITH MY LOVE LIFE?!, are all registered marks.) Similarly, marks using excretory words like “feces,” “poop,” and “turd,” have been registered, but “shit” is refused. As Brinetti’s lawyers put it:

Polite humor is fine, raunchy humor is scandalous. Raising babies is sweet, making babies is disgusting. Kissing is fine, sex is dirty. Feminism is good, misogyny is bad. The word “penis” is allowed, an outline of a penis is not. Promotion of capitalism is okay, criticism of capitalism is scandalous…In all these situations, the Government is preferring certain viewpoints over other, disfavored viewpoints.

Brunetti argues that since profanity is also a viewpoint, it is protected. The brief cites a 1971 case, Cohen v. California, in which the justices overturned Paul Robert Cohen’s conviction for the crime of disturbing the peace by wearing a jacket displaying “Fuck the Draft” in a California courthouse. Justice John Harlan wrote:

Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us…while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Nearly a half-century later, we’re still debating the lyricism and vulgarity of this particular word and the extent to which the government can dictate linguistic prudishness. But you can bet the word “fuck” won’t be heard at oral arguments. As Adam Liptak notes in the New York Times, when in 2008 and 2012, the Supreme Court heard arguments over the use of curse words on broadcast television, lawyers were warned in advance not to swear. While the justices may decide the “Scandalous Clause” does violate free speech, they’ll likely curtail linguistic liberty in their presence and lawyers for both sides will have to be nimble, dancing around examples of any questionable vulgarities.