United States Supreme Court Comments on How the First Amendment Applies to Governmental Rules

Iancu v. Brunetti
United States Supreme Court No. 18-302
Monday, June 24, 2019

Erik Brunetti sought federal registration of the trademark FUCT. The Patent and Trademark Office (PTO) denied his application under a provision of the Lanham Act that prohibits registration of trademarks that “[c]onsist[ ] of or comprise[ ] immoral[ ] or scandalous matter,” 15 U. S. C. §1052(a). Brunetti brought a First Amendment challenge to the “immoral or scandalous” prohibition in the Lanham Act. Following in the footsteps of the earlier decided Matal v. Tam, 582 U. S. ___ (2017), the United States Supreme Court held that the Lanham Act’s prohibition on registration of “immoral[ ] or scandalous” trademarks violates the First Amendment.

Although this case pertained to trademarks, it contained important dicta (court commentary) pertaining to the First Amendment. In short, the Court emphasized the robust protections the First Amendment gives to speech, particularly where the rules pertaining to that speech “disfavor[] certain ideas,” i.e. discriminate based on content.

In this case, the rules utilized by the PTO asked “whether a ‘substantial composite of the general public’ would find the mark ‘shocking to the sense of truth, decency, or propriety’; ‘giving offense to the conscience or moral feelings’; ‘calling out for condemnation’; ‘disgraceful’; ‘offensive’; ‘disreputable’; or ‘vulgar.’” In applying those rules, the PTO’s initial examination by attorney and secondary examination by an internal appeals board concluded that FUCT either on its own or as used by Brunetti was “extremely offensive.”

In its holding, the Court emphasized that “[t]he government may not discriminate against speech based on the ideas or opinions it conveys.” The viewpoint discrimination that the rule required – the discrimination against “ideas that offend” – was an anathema to the First Amendment. The Lanham Act did  “not draw the line at lewd, sexually explicit, or profane marks” nor did “it refer only to marks whose ‘mode of expression,’ independent of viewpoint, is particularly offensive,” but it encompassed “the universe of immoral or scandalous—or (to use some [] synonyms) offensive or disreputable—material.” Therefore, it violated the First Amendment.

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Practice Pointer:  This case provides some guidance to the United States Supreme Court’s thoughts on how the First Amendment applies to governmental rules. In particular, when municipalities craft rules governing public comment and public meetings, care must be exercised to ensure that protected speech is not infringed. This case tells us that even vulgar words are protected speech. Public comment rules could discourage vulgarities but a vulgarity in-and-of itself could not be banned under rules governing public comment.