Elena Kagan Makes The Washington Racial Slurs A Little Less FUCT’d

The Supreme Court is continuing to move towards a definition of the First Amendment that includes the government’s sanctioning of offensive speech. We saw it two years ago, when the Court unanimously ruled in Matal v. Tam — “The Slants” case — that the Lanham Act’s prohibition on “disparaging” trademarks violates the First Amendment. Today, the Court ruled 6-3 in Iancu v. Brunetti that the Lanham Act’s ban on “scandalous” or “immoral” marks also violates the First Amendment.

The majority — which was made up of an unusual line-up of Elena Kagan, Stephen Breyer, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Justice Brett — is almost certainly right here. At issue, was a brand called “FUCT.” As Elena Kagan put it, in one of the more elegant phrasing you’re likely to see in a Supreme Court opinion:

Respondent Erik Brunetti is an artist and entrepreneur who founded a clothing line that uses the trademark FUCT. According to Brunetti, the mark (which functionsas the clothing’s brand name) is pronounced as four letters, one after the other: F-U-C-T. See Brief for Respondent 1. But you might read it differently and, if so, you would hardly be alone. See Tr. of Oral Arg. 5 (describing the brand name as “the equivalent of [the] past participle form of a well-known word of profanity”). That common perception caused difficulties for Brunetti when he tried to register his mark with the U. S. Patent and Trademark Office (PTO).

I think Elena Kagan is the funniest person on the Court since Scalia died and I will actually fight you about it.

In any event, Kagan and her weird majority ruled that if the “immoral and scandalous” ban is a form of viewpoint discrimination, it must fail against the First Amendment.

How could it not? There is no good, neutral objective standpoint of morality and scandal anymore, if there even ever was one. Hell, we live in a time where the so-called “moral majority” doesn’t even seem to think alleged rape is “immoral” if their guy is the one doing it. Immorality simply has no place in trademark registration, while “scandalous” is such a clearly subjective term I’m surprise it has lasted this long.

Kagan writes:

There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all. It therefore violates the First Amendment.

Kagan is right… UNFORTUNATELY.

The dissenters mainly try to rewrite the Lanham Act so as to preserve it, and it’s not great, even if you are okay with the Court rewriting acts Congress was too stupid to get right the first time. But Justice Sonia Sotomayor gets the the heart of the problem with basically reading the Lanham Act out of commission:

The Court’s decision today will beget unfortunate re-sults. With the Lanham Act’s scandalous-marks provi-sion, 15 U. S. C. §1052(a), struck down as unconstitutional viewpoint discrimination, the Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.

Sotomayor is, as usual, right. This is what will happen, especially in Trump’s America where the most bigoted and vulgar among us feel more empowered than ever. There’s just going to be a parade of troll-y marks registered by people who want to peacock that they can hate Americans just as much as the MAGA asshats.

I think about this case, and Tam before it, with particular regard to the Washington, D.C. football team which still insists on being called the0i “Redskins.” Tam, which was directly on point, and Brunetti taken together show that the efforts to remove legal protection from a racial slur masquerading as a nickname will fail. The government is not coming to stop the “Redskins” or the Indians or the Seminoles or whatever native caricature gives white people an excuse to mock other cultures in the name of team spirit.

But, we don’t only need to look to government to solve problems. I’m telling you, if ESPN decided to simply stop repeating “Redskins” every time a player explodes his knee on their crappy field, the Washington Football Club would change its stupid name inside of two years. The government regulating offensive speech is bad. The media, publishers, and tech companies regulating offensive speech is acceptable. There’s no reason Electronic Arts, which markets the Madden football video game to teenagers, need “authentically” recreate the racism of the Washington football team. At least, if they’re going to do that, they should give me the option to make my players kneel and then be deleted from the video game like they never existed.

If we want government regulation of offensive marks, we’re going to need a new Lanham Act. In a world where government was able to function, we might expect Congress to take the hint and get right on it. In our world, Mitch McConnell’s plan of never doing anything other than appointing judges still holds the day.

At least “Cocaine Mitch” is a trademark that can be registered now.

Iancu v. Brunetti [Supreme Court]

---

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.