By Stephen L. Carter
Nobody on the Supreme Court wanted quite to pronounce the word that everybody was thinking when the justices handed down their decision essentially ordering the Patent and Trademark Office to register “FUCT” as a trademark.1
Yes, that’s what happened.
True, as a formal matter, the court simply ruled that the Lanham Act’s ban on “immoral” or “scandalous” marks violates the First Amendment. This seems the correct result, as I have argued more than once. Moreover, the outcome was clearly signaled two years ago, when the justices held that the statute’s prohibition on “disparaging” marks was also unconstitutional. If you’re allowed to disparage, it’s hard to see why you’re not allowed to offend.
But “FUCT” — can I even write that word? Apparently, yes (unless my editor has left a blank space there). The case, Iancu v. Brunetti, arose after Erik Brunetti, a self-styled “artist and entrepreneur,” filed an application to register the term as a mark for a clothing line. The PTO was outraged, finding the proposed mark “highly offensive,” and adding that the term possessed “decidedly negative sexual connotations.” All of this is true — but, as Justice Elena Kagan wrote for the majority, to rely on such judgments as the basis for denying trademark registration is to put the federal government in the business of discriminating on the basis of the content of speech.2
Kagan did not shy away from the problem that makes the proposed mark all but unwritable. One has to love the stylishness and dry wit of her majority opinion: “According to Brunetti, the mark (which functions as the clothing’s brand name) is pronounced as four letters, one after the other: F-U-C-T,” she writes. “But you might read it differently and, if so, you would hardly be alone.”
Exactly. No matter what Brunetti claims, it’s hard to see the word and not think about the obvious pronunciation. One assumes that this was his intention. Recognizing that issue, Kagan mentions the actual four-letter mark itself only twice in her opinion. (Justice Sonia Sotomayor, in a lengthy partial dissent, never spells it out.)
The government argued that the statute could be construed narrowly, perhaps so narrowly as to ban only marks that are sexually explicit or lewd. But that’s not what the statute says, and the justices properly declined the invitation to write a new one.
Justice Samuel Alito, in a concurring opinion, urges Congress to fix the problem: “Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends. 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.”
He suggests that under his proposed narrower statute, the FUCT mark might be eminently bannable: “The term suggested by that mark is not needed to express any ideas, and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary.”
Ouch. Curmudgeons of the world unite! One has to give Alito top marks for style — “signifies nothing except emotion and a severely limited vocabulary” is immediately quoteworthy and may well go down in history — but a narrower statute wouldn’t solve this problem. I’m as distressed as he is at the notion of a future full of what he calls marks that “serve only to further coarsen our popular culture.” But the problem isn’t the rise of appallingly offensive marks. It is popular culture itself. Law can’t fix that.
I’m a curmudgeon too, and I agree with Alito’s implied premise. Vulgarity isn’t clever. It’s juvenile. It’s the sign of a writer too lazy to hunt for the best way to make a point; or of a sense of humor forever stuck in middle school. That doesn’t mean the First Amendment doesn’t protect the rights of those who express themselves that way.
The problem Alito rightly identifies is deeply embedded in popular culture, and fixing it isn’t the government’s business. Not through speech codes, not through bans on profanity, and certainly not through trademark law.
Conversation itself is a kind of market, and we can’t keep words we dislike from becoming common by legislating against them. We can certainly lament the increased cluttering of our public spaces with the vulgar and the offensive, and we can certainly decry a trademark so tasteless the justices of the Supreme Court would rather not mention it. But we should always celebrate the First Amendment that protects them both.
- A company does not require a federal trademark registration to use a mark, but federal registration does lead to considerably more protection.
- As Kagan notes, notwithstanding the ban, the PTO in the past has used the vagueness of the statutory language as a justification for obvious discrimination on the basis of viewpoint — registering, for example, “Jesus Died for You,” while denying registration to “Bong Hits for Jesus” in part because of a sense that the second would be offensive to Christians. I’m a Christian and I would be offended — but I can imagine few greater dangers to the First Amendment than entrusting the government with protecting me from offense.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. This column does not necessarily reflect the opinion Minnesota Lawyer, of the Bloomberg editorial board or Bloomberg LP and its owners.