Trademark and the First Amendment

Today, the Supreme Court of the United States (Gorsuch, J., not participating) held in Matal v. Tam that the Patent and Trademark Office's denial of a trademark to the band The Slants violated the First Amendment. The band wanted to trademark its name. The PTO denied the application because it determined that the registration of this name as a trademark would "'disparage . . . or bring . . . into contemp[t] or disrepute' . . . 'persons, living or dead.'" Matal v. Tam, No. 15-1293 at 1 (quoting 15 U.S.C. §1052(a)).

Justice Alito delivered the Court's opinion as to Parts I, II, and III-A. Seven other justices joined as to these parts with the exception of Justice Thomas's not joining Part II. Alito also wrote the opinion as to Parts III-B, III-C, and IV in which he was joined by Roberts, C.J., and Thomas and Breyer, JJ. Justice Kennedy wrote an opinion concurring in part and concurring in the judgment; Ginsburg, Sotomayor, and Kagan, JJ., joined. Finally, Justice Thomas wrote an opinion concurring in part and concurring in the judgment.

Part I is simply an overview of trademark law and background on the case. Part II addressed whether the statute applies to racial or ethnic groups as opposed to applying only to natural or juristic persons. Because Tam did not raise this issue in the lower court, SCOTUS did not grant certiorari on this issue. The government, however, urged the court to review this issue because it might avoid the constitutional question. Courts prefer avoiding decisions on constitutional grounds when they can. The Court, however, rejected Tam's argument as not supported by the text of the statute. Justice Thomas disagreed with Part II only because he felt the denial of certiorari on this issue should have ended the inquiry. Justice Thomas also argued that strict scrutiny applies when the government tries to suppress truthful speech even if it is characterized as commercial speech. The Court applied a less stringent test; because the Court even under the less stringent test found the statute unconstitutional, Thomas concurred in the judgment.

In Part III-A, the Court in an 8-0 opinion rejected the government's claim that the issuing of a trademark is government speech and therefore outside of the First Amendment. In rejecting the government's argument, the Court said that if registering trademarks is government speech, the government is "babbling prodigiously and incoherently."

In Par III-B Alito and three others rejected the government's claim that registering a trademark was analogous to a government subsidy and outside of the protection of the First Amendment. Likewise, in Part III-C Alito and three others rejected the applicability of the government's proposed "new doctrine that would apply to 'government-program' cases."

In Part IV, Alito discussed which standard should apply, but ultimately did not decide the issue because the statute in question failed under either standard. (Thomas would have reached this issue and applied strict scrutiny.)

In Kennedy's opinion (joined by three others) he concluded that the statute is unconstitutional because it is viewpoint discrimination. And he believed that this conclusion was all that was necessary to decide the case. Kennedy noted that the government's argument, i.e., the statute is viewpoint neutral because it prohibits all sides from disparaging others, was illogical. "By mandating positivity, the law . . . might silence dissent and distort the marketplace of ideas."

The bottom line is that the Court's judgment is 8-0 that the statute violates the First Amendment, and this is the right conclusion.

73rd Anniversary of D-Day

Today marks the 73^rd anniversary of D-Day. On this day—73 years ago—“4,000 ships, 11,000 planes, and nearly three million soldiers, marines, airmen, and sailors assembled in England for the assault.”  The invasion succeeded, but success was not a foregone conclusion. Failure was as likely an outcome. Eisenhower wrote a note on June 5, 1944, accepting responsibility for the failure. (He mistakenly dated it July 5.)   It is doubtful in our era that we have leaders who would willingly accept such blame.

The first quote mentions the marines; students of history will question this as there are no stories of heroism by the U.S. Marines on D-Day. And if the Marines were involved, such stories would abound. By 1944, the Marines were masters of the amphibious assault. The Marines trained the Army in how to conduct amphibious landings in North Africa, Italy, and, yes, Normandy. But the Marines did not play a large role in the European Theatre. The Marines had their hands full in the Pacific, and they were much smaller than the Army; the Marines had six divisions in WWII compared to the 89 divisions of the Army. Some, however, attribute the Marines not playing a large role in Europe to the Army’s jealousy from WWI where the Marines received a lot of press for the success of the Battle of Belleau Wood. Marshall, Eisenhower, and Bradley were WWI veterans. I don’t know if there are any facts to back this up. I’ve always thought the Marines played a larger role in the Pacific Theatre because they are part of the Dept. of the Navy and the Navy, by virtue of the nature of the Pacific Theatre, played such a large role in the Pacific.

But today we ignore the pettiness that rules man, and remember those who did the unthinkable and broke the Nazi stranglehold on Europe.