Supreme Court Strikes Down Law Barring Vulgar Trademarks

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WASHINGTON — The Supreme Court on Monday struck down a federal law barring the registration of “immoral” or “scandalous” trademarks, saying it ran afoul of the First Amendment.

The court also made it harder for news organizations and the public to obtain commercial information under the Freedom of Information Act.

The trademark case concerned a line of clothing sold under the brand name FUCT. When the case was argued in April, a government lawyer told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”

Justice Elena Kagan, writing for a six-justice majority, did not dispute that. But she said the law was unconstitutional because it “disfavors certain ideas.”

She gave examples. Government officials have granted trademark protection to antidrug messages but not to “Marijuana Cola,” to pro-religion messages but not to “Madonna” wine and to antiterrorism messages but not to “Baby Al Qaeda.”

The decisions were understandable, Justice Kagan wrote. “The rejected marks express opinions that are, at the least, offensive to many Americans,” she wrote.

But a bedrock principle of First Amendment law, she wrote, is that the government may not draw distinctions based on speakers’ viewpoints.

In 2017, addressing a companion provision in the trademark law, a unanimous eight-justice court struck down a restriction on trademarks that disparage people, living or dead, along with “institutions, beliefs or national symbols.”

The decision, Matal v. Tam, concerned an Asian-American dance-rock band called the Slants. The court split 4 to 4 in much of its reasoning, but all of the justices agreed that the provision at issue in that case violated the Constitution because it took sides based on speakers’ viewpoints. (The decision also effectively allowed the Washington Redskins football team to register its trademarks.)

On Monday, Justice Kagan wrote that the same analysis applied to the provision barring immoral or scandalous trademarks. She rejected arguments from the government and dissenting justices asking the court to read the statute narrowly to deny registration only to trademarks that use particularly offensive language, whatever their viewpoint. But she suggested that such a statute might survive constitutional scrutiny.

Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh joined Justice Kagan’s majority opinion.

In a concurring opinion, Justice Alito underscored the majority’s central point and connected it to broader contemporary controversies.

“Viewpoint discrimination is poison to a free society,” he wrote. “But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country.”

Three justices filed partial dissents. All agreed that the ban on immoral trademarks must fall but said that the prohibition of scandalous ones could survive if narrowly interpreted.

“The First Amendment protects the freedom of speech,” Chief Justice John G. Roberts Jr. wrote. “It does not require the government to give aid and comfort to those using obscene, vulgar and profane modes of expression.”

In his own partial dissent, Justice Stephen G. Breyer cited social science research showing that swear words have special force, and he worried that the decision could encourage wider use of racial slurs. “Just think,” he wrote, “about how you might react if you saw someone wearing a T-shirt or using a product emblazoned with an odious racial epithet.”

Justice Sonia Sotomayor also filed a partial dissent in the case, Iancu v. Brunetti, No. 18-302, saying she would have interpreted the prohibition on scandalous trademarks to cover only “obscenity, vulgarity and profanity.”

In a second decision on Monday, the court made it easier for the government to withhold commercial information sought under the Freedom of Information Act, or FOIA.

The case arose from an investigation by The Argus Leader, a South Dakota newspaper, into fraud in the food stamp program.

The government refused to provide data about grocery stores’ participation in the program, citing a part of FOIA that protects confidential commercial information. A federal appeals court ruled for the paper, saying that the stores had failed to show they would suffer “substantial competitive harm” were the information disclosed.

Justice Gorsuch, writing for the majority in the 6-to-3 decision in the case, Food Marketing Institute v. Argus Leader Media, No. 18-481, said the appeals court’s standard was too demanding. All the stores had to show, he wrote, is that they kept the information confidential and had been promised that the government would do the same.

In a partial dissent, Justice Breyer agreed that the appeals court had used too tough a standard. But he said parties resisting disclosure should be required to show at least some competitive harm.

“The whole point of FOIA,” he wrote, “is to give the public access to information it cannot otherwise obtain.”

Justices Ginsburg and Sotomayor joined Justice Breyer’s dissent.

“For the majority,” Justice Breyer wrote, “a business holding information as private and submitting it under an assurance of privacy is enough to deprive the public of access. But a tool used to probe the relationship between government and business should not be unavailable whenever government and business wish it so.”

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