Found time to read this closer, and the concurring/dissenting opinions are really ridiculous.
Samuel Alito wrote:Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary. The registration of such marks serves only to further coarsen our popular culture.
I think that Alito needs to listen with an open mind to something like George Carlin's Seven Dirty Words, or
something like this.
John Roberts wrote:I also agree that, regardless of how exactly the trademark registration system is best conceived under our precedents—a question we left open in Tam—refusing registration to obscene, vulgar, or profane marks does not offend the First Amendment. Whether such marks can be registered does not affect the extent to which their owners may use them in commerce to identify goods. No speech is being restricted; no one is being punished. The owners of such marks are merely denied certain additional benefits associated with federal trademark registration. The Government, meanwhile, has an interest in not associating itself with trademarks whose content is obscene, vulgar, or profane. The First Amendment protects the freedom of speech; it does not require the Government to give aid and comfort to those using obscene, vulgar, and profane modes of expression.
Gah! The First Amendment also mandates that government cannot favor or disfavor certain types of speech. That's exactly what carving out an "obscene/vulgar/profane" exception would do!
Which leads us to this:
Stephen Breyer wrote:[...]it is hard to see how a statute prohibiting the registration of only highly vulgar or obscene words discriminates based on “viewpoint.” Of course, such words often evoke powerful emotions. Standing by themselves, however, these words do not typically convey any particular viewpoint.
Oh for crying out loud, you could say that about any word in the dictionary. It's amazing how myopic Supreme Court justices, who are otherwise excellent with language, could be about this.
Stephen Breyer wrote:How much harm to First Amendment interests does a bar on registering highly vulgar or obscene trademarks work? Not much. The statute leaves businesses free to use highly vulgar or obscene words on their products, and even to use such words directly next to other registered marks. Indeed, a business owner might even use a vulgar word as a trademark, provided that he or she is willing to forgo the benefits of registration.
If this is the argument to be made, then, again, how much harm is there to the First Amendment to a bar on
any trademark?
Stephen Breyer wrote:cientific evidence suggests that certain highly vulgar words have a physiological and emotional impact that makes them different in kind from most other words. These vulgar words originate in a different part of our brains than most other words. And these types of swear words tend to attract more attention and are harder to forget than other words. Notably, that has remained true even as the list of offensive swear words has changed over time: In the last few centuries, the list has evolved away from words of religious disrespect and toward words that are sexually explicit or that crudely describe bodily functions. And the list of swear words may be evolving yet again, perhaps in the direction of including race-based epithets.
Gee, why has this list evolved several times? Maybe it's because language is a social construct that changes as societal norms change. That's the type of evolution that the First Amendment is intended to protect.
Stephen Breyer wrote:These attention-grabbing words, though financially valuable to some businesses that seek to attract interest in their products, threaten to distract consumers and disrupt commerce. And they may lead to the creation of public spaces that many will find repellant, perhaps on occasion creating the risk of verbal altercations or even physical confrontations. (Just think about how you might react if you saw someone wearing a t-shirt or using a product emblazoned with an odious racial epithet.)
I'd react differently depending on what the context of that apparel choice is. But regardless of my reaction, I would say in every single instance that that person has a First Amendment right to wear that shirt.
I find it incredible that Breyer actually wrote this when he joined
Matal v. Tam in full, which precisely dealt with racial epithets.
Stephen Breyer wrote:Finally, although some consumers may be attracted to products labeled with highly vulgar or obscene words, others may believe that such words should not be dis-played in public spaces where goods are sold and where children are likely to be present. They may believe that trademark registration of such words could make it more likely that children will be exposed to public displays involving such words. To that end, the Government may have an interest in protecting the sensibilities of children by barring the registration of such words.
Oh noes, the children! We really need a Godwin's Law equivalent when someone trots out the
Helen Lovejoy argument.
I'm done with Breyer, but unfortunately we still have one more justice to go:
Sonia Sotomayor wrote:What would it mean for “scandalous” in §1052(a) to cover only offensive modes of expression? The most obvious ways—indeed, perhaps the only conceivable ways—in which a trademark can be expressed in a shocking or offensive manner are when the speaker employs obscenity, vulgarity, or profanity.
Hm, when I think of some of the greatest scandals in history, any obscene, vulgar, or profane moments are usually the least notable things about why they're scandals.
Sonia Sotomayor wrote:As for what constitutes “scandalous” vulgarity or profanity, I do not offer a list, but I do interpret the term to allow the PTO to restrict (and potentially promulgate guidance to clarify) the small group of lewd words or “swear” words that cause a visceral reaction, that are not commonly used around children, and that are prohibited in comparable settings.
Et tu, Sotomayor?
Sonia Sotomayor wrote:Adopting a narrow construction for the word “scandalous”—interpreting it to regulate only obscenity, vulgarity, and profanity—would save it from unconstitutionality. Properly narrowed, “scandalous” is a viewpoint-neutral form of content discrimination that is permissible in the kind of discretionary governmental program or limited forum typified by the trademark-registration system.
This is the crux of her argument, and at least it doesn't have some of the howlers like Alito, Roberts, and Breyer had. But I've long rejected a distinction between viewpoint and content with the Free Speech Clause, as I inherently see variances in content influencing the viewpoint of the speech.
TL;DR: there should be no obscenity/vulgarity/profanity exception to the First Amendment, and it's depressing to see so many justices of varying ideologies still hung up over this despite SCOTUS generally being quite good with the Free Speech Clause in recent decades.
