Erik Brunetti wants to be scandalous. A fashion designer and provocateur, Brunetti helped pioneer streetwear in the 1990s, selling clothes with profane and subversive messages through his brand Fuct. Brunetti has tried to register Fuct as a trademark, but the government won’t let him, because federal law prohibits the registration of “scandalous” trademarks. The U.S. Patent and Trademark Office cited Urban Dictionary to prove that Fuct is the “past tense of the verb fuck” and therefore a “scandalous” vulgarity under the law. Now Brunetti is asking the U.S. Supreme Court to strike down this statute, clearing the way for him to register his trademark at last.
The big question I had before Monday’s arguments in the case, Iancu v. Brunetti, was whether any justice would say Fuct on the bench. I am sad to report that none did. I am even sadder to report that it’s unclear whether a majority of the court is prepared to invalidate this straightforward abridgement of Brunetti’s free speech. What should have been an easy victory for the First Amendment now seems more muddled than ever, as the justices struggle to protect free expression without offending too many delicate sensibilities.
From the start of arguments, it’s clear that the current bench is divided into prudes and cool kids. In the prudish corner are Chief Justice John Roberts (who looked slightly mortified all morning), as well as Justices Stephen Breyer and Samuel Alito. In the cool kids’ corner are Justices Ruth Bader Ginsburg (duh), Sonia Sotomayor, Elena Kagan, and Neil Gorsuch. Justice Brett Kavanaugh wants to sit at both tables, but I think he’s a prude at heart. And while Justice Clarence Thomas kept mum as usual, he whispered to Breyer and laughed as Deputy Solicitor General Malcolm Stewart strained to avoid saying Fuct. (“The equivalent of the profane past participle form of a well-known word of profanity” is the euphemism poor Stewart landed on.) Thomas can sit with the cool kids for now.
Brunetti should not be a hard case because it is merely a sequel to 2017’s Matal v. Tam, another trademark dispute. In Matal, the court unanimously struck down a federal statute that prohibited the registration of any trademark that would “disparage” an individual or group of people. And it might seem that the First Amendment could not possibly distinguish between disparaging and scandalous trademarks. But Matal was decided by an eight-member court, before Gorsuch joined the bench, and it produced a confusing jumble of opinions with no majority support for a single constitutional principle. Everyone agreed that the First Amendment limits the government’s ability to reject certain trademarks because some people find them offensive. But the justices splintered on why and how, leaving the door open for the court to clear it up in a case like Brunetti.
The main problem for Stewart, who defended the law on Monday, is that it is, as written, indefensible. To determine which trademarks are “scandalous,” the Patent and Trademark Office would have to decide what expression crosses the boundary of public decency. But speech can be “scandalous” because of the ideas it expresses, not just the words it uses to convey them. And the notion of “scandalous” speech is inherently subjective; what’s scandalous to you may be hilarious to me. This standard, in other words, requires the government to discriminate on the basis of viewpoint—which everyone seemed to agree was impermissible in Matal.
To get around this roadblock, Stewart declared that the PTO applies the law in a very particular way. The PTO, he asserted, only rejects “shocking” trademarks, or those that are “offensive because of the mode of expression, not because of the ideas” behind them. This rule could be applied consistently, without threatening free speech, because it basically bans well-known naughty words and “sexually explicit images.”
Ginsburg doesn’t buy it. “Considering what’s involved in this case,” she asked Stewart, “if you were to take a composite of, say, 20-year-olds, do you think that … they would find it shocking?” Neither does Sotomayor. “Once you get to shockingly offensive, you get to viewpoint. One way or another, it’s always subjective.” Then Gorsuch jumped in to call Stewart’s attention to the PTO’s inconsistent application of this putative rule. “I could not myself see a rational line,” Gorsuch told Stewart. Then he added, with a mischievous grin: “I don’t want to go through the examples. I really don’t want to do that.”
But I do! The PTO has approved the trademark “Cumbrella” and rejected “Cum Together.” It has approved “Whores From Hell” and rejected “The Christian Prostitute.” It has approved “Grammar Nazi” while rejecting “Coffee Nazi” and “Surf Nazi.” “Dykes on Bikes” and “Dyke Night” are OK, but “2 Dykes Minimum” is not. “Anal Fantasy Collection” got registered while “A-Hole Patrol” was refused. “Party With Sluts,” “Wondrous Vulva Puppet,” “Laughing My Vagina Off,” and “I Am Strung Out Like a Crack Whore in Spandex” were all approved. “Camel Toe Surf Wax,” “Tasty Twats,” “Bubby Trap,” and “Pussywear” were all denied registration by the PTO.
In light of these bizarre inconsistencies, Gorsuch asked Stewart, “how is a reasonable citizen supposed to know” which marks will be approved? “What notice do they have about how the government’s going to treat their mark?” Gorsuch wondered. And how does the PTO decide? “Is it a flip of the coin?”
Stewart got an assist, however, from Roberts, Alito, and Breyer, all of whom seemed skeptical of Brunetti’s lawyer, John Sommer, when he swaggered up to the lectern. Certain “racial slurs” and profanities, Breyer said, have a “different physiological effect on the brain. They’re stored in a different place.” Alito told Sommer that “the word your client wants to use” doesn’t “express any sort of viewpoint,” just “an emotion.” Roberts asked why the government can’t say it does not want to be “associated with facilitating this type of vulgarity” when “the whole point is to reach beyond the targeted audience to offend people.”
These justices were rather obviously trying to find a way to save the law, to interpret it narrowly enough to avoid constitutional flaws. As a policy choice, that might make sense. As a matter of judicial review, it does not—as Kagan pointed out to Stewart. “You’re essentially saying we should uphold the statute on the basis of various commitments that the government is now making to apply this statute to only a small subset of the things that it could apply to,” she told him. “And that’s a strange thing for us to do, isn’t it?”
Kagan is right: The better solution would be to simply strike down the statute, then let Congress pass a narrower one. In its current form, this law just gives the PTO too much arbitrary power to reject trademarks because it disapproves of the coarse language and risqué images that, for better or worse, dominate our cultural and political discourse. But Roberts, Alito, and Breyer seemed to be drawing Kavanaugh toward their position, and Thomas has been known to approve the suppression of expression he dislikes. I still think the cool kids will carry the day in Brunetti and score one for free speech. But if the prudes scrounge up five votes to salvage this statute, Brunetti’s brand won’t be the only thing that’s Fuct.