The Supreme Court’s recent decision in Iancu v. Brunetti (2019), striking down a provision of federal trademark law barring the registration of “immoral or scandalous” trademarks, affirms fundamental First Amendment principles. These fundamental principles concern viewpoint discrimination and overbreadth.
To recap, the court addressed the trademark provision in the case of Erik Brunetti, an artist and entrepreneur who founded a clothing line named FUCT. The name obviously bears close resemblance to a profanity.
This caused the U.S. Patent and Trademark Office to reject Brunetti’s proposed registration as “a total vulgar” and “extremely offensive.” Brunetti sued on First Amendment grounds.
The court ruled in his favor for at least two reasons. First, the provision permitting the rejection of marks as immoral allowed the government to engage in what is known as viewpoint discrimination — a nasty term in First Amendment law.
If there is one overarching free-speech principle it is that the government should not favor certain viewpoints and disfavor other viewpoints. Justice Elena Kagan in her majority opinion noted this, writing: “The facial viewpoint bias in the law results in viewpoint-discriminatory applications.”
Justice Samuel Alito was even blunter in his concurring opinion in his condemnation of viewpoint discrimination, writing in memorable language: “Viewpoint discrimination is poison to a free society.”
The court also relied on another core constitutional principle — the overbreadth doctrine. When a law sweeps too broadly and prohibits speech that ought to be protected, the law is overbroad.
Justice Kagan also relied on the overbreadth doctrine. She explained: “There are a great many immoral and scandalous ideas in the world (even more than there are swearwords) and the Lanham Act (the federal trademark law) covers them all. It therefore violates the First Amendment.”
This passage confirms Justice Kagan’s invocation of the overbreadth doctrine. The law simply allowed the government to prohibit too much speech that should be protected.
David L. Hudson Jr. is a Freedom Forum Institute Fellow for First Amendment Studies, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).