The Supreme Court heard a lively argument Monday on whether the 1st Amendment’s protection for the freedom of speech extends to words and symbols that the government’s trademark office views as “scandalous.”
Clothing company founder Erik Brunetti applied to register his trademark in 2011 and sued after being turned down by the U.S. Patent and Trademark Office.
That is “not a restriction on speech, but a valid condition on participation in a federal program,” Stewart told the court. Brunetti is free to say what he wants or sell clothes bearing his FUCT brand, he added, describing a registered trademark as a “government benefit.” But Justice Stephen G. Breyer questioned why the court should open the door to authorizing the use of racial slurs and vulgar words as official trademarks. “Why doesn't the government have a right to say: ‘This is a commercial matter, purely commercial.’ Why can’t the government say we don’t want to be associated this?” he asked. “That doesn’t forbid anyone from using the word.”and struck down the part of the trademark law that prohibited the use of “disparaging” words.
Justice Ruth Bader Ginsburg questioned why the word at issue was deemed to be shocking. “If you were to take a composite of, say, 20-year-olds, do you think that … they would find it shocking?” she said. “Suppose in the niche market where these goods are aimed, the word is mainstream.”
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