On The Front Lines
Victory: Supreme Court Protects Anti-Government Speech, Strikes Down Law Allowing Gov’t to Censor Speech It Finds ‘Immoral’ or ‘Scandalous’
WASHINGTON, DC —The U.S. Supreme Court has rejected the government’s claim that it can censor speech it considers distasteful, striking down as unconstitutional a federal statute that allows the government to reject trademark applications for “immoral” or “scandalous” brand names.
In its ruling in Iancu v. Brunetti, the Supreme Court found that the government violated the First Amendment when the U.S. Patent and Trademark Office 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. Attorneys for The Rutherford Institute had filed an amicus brief challenging the statute on the grounds that it 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.
The ruling follows on the heels of a 2017 ruling in Matal v. Tam in which the Court rejected an attempt by the government to censor trademark names that might cause offense (namely, in the case of The Slants, an Asian-American rock band). The ruling is also expected to positively impact the Washington Redskins’ effort to protect their trademark, which was revoked under the same “immoral or scandalous” law.
Affiliate attorneys Megan L. Brown, Scott B. Wilkens, Christopher J. Kelly, and Wesley E. Weeks of Wiley Rein LLP helped the Institute to advance 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,” asked 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. The application was rejected 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 constituted 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 argued that the immoral and scandalous provisions of the trademark law violate 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.