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On The Front Lines

Anti-Government Speech Is Still Protected Speech: Rutherford Institute Challenges Law Allowing Gov’t to Censor Speech It Finds Distasteful

WASHINGTON, DC — Pushing back against a law that allows the government to censor speech it finds distasteful or immoral, The Rutherford Institute has asked the U.S. Supreme Court to strike down a federal statute that allows the government to reject trademark applications for “scandalous” brand names that some might find offensive. In this particular case, the government rejected as immoral or scandalous a trademark application for streetwear brand “FUCT” (an acronym for “FRIENDS U CAN’T TRUST”) that serves as artist Erik Brunetti’s commentary on the need to challenge government authority and societal assumptions. In an amicus brief filed with the Court in Iancu v. Brunetti, Rutherford Institute attorneys contend that the statute violates the most fundamental First Amendment guarantees by investing the government with the power to act as an arbiter of good taste and censor speech it finds offensive or with which it disagrees.

Affiliate attorneys Megan L. Brown, Scott B. Wilkens, Christopher J. Kelly, and Wesley E. Weeks of Wiley Rein LLP assisted The Rutherford Institute in advancing the arguments in the Brunetti brief.

“Whatever the rationale for criminalizing speech, the end result remains the same: outright censorship and the creation of a class system that renders speech perceived as politically incorrect, hateful or offensive as inferior and less entitled to the full protection of the law,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Ultimately, the First Amendment assures every individual the right to speak truth to power using whatever nonviolent means are at their disposal. As comedian Lenny Bruce—a lifelong champion of free speech—used to remark, ‘If you can’t say ‘F@#$’ you can’t say, ‘F@#$ the government.’”

Artist Erik Brunetti founded a brand of streetwear clothing and apparel in 1990 with an aesthetic focus on questioning authority and challenging the government and the assumptions of society. Brunetti chose “FUCT” as the brand name for his line of clothing, which stands for “FRIENDS U CAN’T TRUST.”  In 2011, Brunetti applied for a trademark registration for FUCT. Trademark registration confers important benefits to businesses, such as federal law protections from infringement. Although the application was initially approved by a trademark examiner, an undisclosed government official instructed the examiner to disapprove the application under a provision of the federal trademark law which allows a trademark to be refused registration if it “[c]onsists of or comprises immoral . . . or scandalous matter[.]”

Brunetti appealed on free speech grounds. The Court of Appeals agreed with Brunetti, ruling that the provision allowing denial of registration because a trademark is “scandalous” was a regulation of the content of speech and is unconstitutional because it is not justified by any compelling government interest. In its amicus brief before the U.S. Supreme Court, Rutherford Institute attorneys argue that the “scandalous” provision of the trademark law violates the First Amendment. The Supreme Court resolved a similar trademark dispute in 2017 in Matal v. Tam when it rejected a government attempt to censor trademark names that might cause offense, ruling unanimously that even speech that some find offensive is protected by the First Amendment. The Rutherford Institute weighed in on the case on behalf of “The Slants,” an Asian-American dance rock band.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated.

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