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Monday, June 24, 2019

Whither Cohen?

In Iancu, Justice Alito's concurrence and the Chief's partial dissent both assert that Congress could constitutionally prohibit trademarks for vulgar or profane words (The Chief argues that Congress did so in the word "scandalous," while Alito argues Congress must amend the statute to do so). Alito goes so far as to argue that the word fuck, as hinted at in the F-U-C-T 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."

But neither Alito nor the Chief cites Cohen. (Neither does Justice Kagan's majority opinion, because "scandalous" is not limited to vulgarity or profanity, so it does not matter to her analysis). And Cohen answers Alito's argument that profanity signifies nothing except emotion--emotion is an essential and inseparable part of the message.

Only Justice Sototmayor's partial dissent (joined by Justice Breyer) addresses that case. She argues that, at best, Cohen means that a restriction on profanity is viewpoint-neutral content discrimination. Profanity "tweaks" or "amplifies" the viewpoint, such that the message is without the profanity is "not quite the same" as with it. But targeting profanity does not target the viewpoint expressed in the message--California would not have allowed a jacket with "Fuck Draft Protesters."

I see Sotomayor's point, although I am not sure I agree. First, consider Justice Alito's plurality (which Sotomayor did not join) in Matal v. Tam, in which Alito argued that the "disparaging-mark" provision was viewpoint-discriminatory. Alito called it a "happy-talk clause" that prohibited registering any mark that criticized, whether the target was racists or anti-racists. A "clean-talk clause" should be equally problematic.

Second, if Sotomayor is correct, it gives short shrift to the possibility of the trademark program as a public forum, specifically a "limited public forum." A limited public forum is supposed to be a designated public forum (government space, opened for speech), although limited to specific speech or speakers. The limitations on the forum must be defined in viewpoint-neutral terms, although the terms can be content-discriminatory (e.g., a forum can be limited to political speech, but not to conservative political speech). Once that forum is established, any content-based restrictions on speech otherwise within the forum must survive strict scrutiny. Unfortunately, the Court has never explained well how to identify the definition of the limited public forum (which merely must be viewpoint-neutral) and exclusions from the established forum (which must be content-neutral, unless able to survive strict scrutiny). Sotomayor believes that, if the trademark system is a forum, the prohibition on "scandalous" (interpreted as "profane") marks makes it a limited public forum for non-scandalous (meaning non-profane) marks. But it as reasonable to see the trademark system as a limited public forum for "marks related to products offered for sale in interstate commerce." In that case, the limitation on scandalous/profane marks, being content-based under Cohen, must survive strict scrutiny.

Maybe this issue comes back around when Congress amends the trademark law to expressly prohibit profane marks.

Posted by Howard Wasserman on June 24, 2019 at 01:57 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

I am surprised how easily trademark - a property right based on commerce and exclusive rights, because a free speech issue . Trademark and IP in general is odd in how it is only valuable if you prevent others from using it!

I would argue that trademark in general is anti-free speech - government imposing limits on other citizens for the financial benefit of the abstract property right granting exclusivity to type of expression!

Posted by: Mike | Jun 25, 2019 6:44:54 PM

"when Congress amends the trademark law to expressly prohibit profane marks"

but wouldn't "profane" be void-for-vagueness" (US v. Davis, today), since profane could include blasphemy, hate speech, or cursing?

wouldn't it have to actually state the exact expressions instead to give fair notice to precisely those excluded expressions?

for instance, you can't just outlaw "sexual harassment", but you have to state the exact phrases that constitute "sexual harassment" to give fair notice under the first amendment

Posted by: One More White Knight | Jun 24, 2019 3:46:28 PM

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