This is the second of a series on the common good and trademark law examining the case of Iancu v. Brunetti. The first post may be found here.
Professor Adrian Vermeule, my fellow contributor here at Ius et Iustitium, has recently published a concise and convincing book expounding on common good constitutionalism. Near the beginning he states that his goal is to present an “interpretive” argument, that is, to show that law in general, and American law in particular, functions best “when the courts defer to public determination of [positive legal provisions], so long as the public authority acts rationally and with a view to legitimate public purposes.” For the meat of this interpretive argument, Vermeule turns to several different famous and important cases, including two Supreme Court cases: Lochner v. New York and United States v. Curtiss-Wright Export Corp.
At the risk of a bit too much levity, I would like to extend and apply Vermeule’s interpretive argument to a much less important Supreme Court case—whether the word FUCT should have been granted trademark registration or barred as “immoral or scandalous.” My first post on trademarks discussed the case of Iancu v. Brunetti, which poses a straightforward matter for decision. Erik Brunetti wanted to register the use of the mark FUCT for shirts and other apparel. Section 2(a) of the Lanham Act of 1946 prohibits registration marks that are, among other bars, “immoral or scandalous.” Brunetti asserted such a prohibition ran afoul of the First Amendment. My first post addressed the background of the case and presented it in the context of the purpose of trademark law.
Today, I turn to the justices’ opinions. This would seem to be a straightforward case, yet Brunetti resulted in a 6-3 decision, with 5 different opinions sparring over issues of statutory interpretation, constitutional interpretation, deference, and governmental abuse of power. Seemingly mundane cases can be more illuminating of justices’ legal analysis and interpretative methods. Through Brunetti, I hope to address one criticism that has been brought against Vermeule’s argument—that natural law and originalism will ultimately come to the same conclusion in most cases regarding the application of moral principles to the law. It turns out that the “Case of the FUCT Registration” proves that natural lawyers and originalists do indeed arrive at different substantive results.
Textualism in the Service of Legal Progressivism: Kagan’s Majority Opinion in Brunetti
Justice Kagan is widely recognized as a great legal writer, and her concise and clear majority opinion in Brunetti is no exception. Joined by justices across the spectrum—Ginsburg, Kavanaugh, Gorsuch, Thomas, and Alito (with a short concurrence)—Kagan’s opinion steps through the now de rigeur First Amendment analysis. First, is the statute content- or viewpoint-based, or is it viewpoint-neutral? If the statute regulates speech based on its content, then it is “presumptively unconstitutional” unless the speech in question is within one of a narrow range of exceptions (fraudulent speech, fighting words, imminent threats, obscenity, etc.). If the statute is viewpoint neutral, it will be judged on whether the restriction is reasonably tailored to meet legitimate government ends.
Kagan finds that the statute is viewpoint-based. Admittedly, it is difficult to plausibly suggest otherwise. The statute bans marks that are “immoral or scandalous,” which requires a specific judgment on the content of the words forming the trademark. Justice Kagan noted, for example, that the USPTO had rejected marks that promoted drug use (MARIJUANA COLA), promoted terrorism (BABY AL QAEDA), or could be deemed blasphemous (MADONNA on wine), while marks that opposed drug use, related to the War on Terror Memorial, or indicated positive connotations of faith were granted registration.
Kagan does find that the words “immoral or scandalous” are broad and open to various meanings, so one may ask why the Court does not simply interpret the words narrowly? Kagan answers this question by demonstrating her commitment to her famous 2015 quip, “We are all textualists now.” “This Court,” she writes, “may interpret ambiguous statutory language to avoid serious constitutional doubts, … [b]ut that canon of construction applies only when ambiguity exists.” The “scandalous or immoral” bar applies not just to lewd, sexually explicit, or profane marks (which the government offered as narrowing constructions), but rather to “the universe of immoral or scandalous material.” Since the statute could not be saved by a narrower construction, it was declared unconstitutional.
We should pause here to consider some historical background. When Congress passed the Lanham Act in 1946 there was no question that it believed it could properly bar “immoral or scandalous” marks from registration. The bar itself dates back to the 1905 Trademarks Act Section 5(a), using exactly the same language. Throughout this time, as a recent Harvard Law Review note states, blasphemy laws and other restrictions on immoral or scandalous speech were routinely upheld as constitutional. Just five years before passage of the Lanham Act, the Tenth Circuit upheld an Oklahoma City ordinance that imposed a fine for “casting contumelious reproach or profane ridicule on God.” Oney v. Oklahoma City, 120 F.2d 861, 865 (10th Cir. 1941). If cities could criminally punish pure speech that was blasphemous, surely Congress reasonably assumed it could simply deny government benefits to trademarks (speech that serves a communal, market-protecting function) that are immoral or scandalous. If cities could implement statutes using words such as “contumelious reproach” and “profane ridicule,” the potential ambiguity or breadth in “immoral or scandalous” seems tame by comparison.
Yet Kagan strikes down the law, using the tiered scrutiny system that only became commonly used and described during the postwar Warren and Burger courts. (Cohen v. California, the case of Paul Cohen’s “Fuck the Draft” jacket, was decided in 1971.) So why does the Court effectively fault Congress for failing to foresee a revolutionary shift in constitutional interpretation? Couldn’t the Court simply adopt Congress’ intent or purpose and narrowly construe the statute?
Kagan rejects the narrowing interpretation because that postwar legal revolution marks the way of legal progressivism, which Vermeule writes “is rooted in a particular mythology of endless liberation through the continual overcoming of the reactionary past.” Not punishing men wearing vulgar jackets, or not refusing to grant trademark protection even to vulgar marks, is proof for Kagan of our commitment to “liberal values.” The tiered scrutiny system is intended to drain analysis of speech content from the law despite the fact that for over 150 years, the First Amendment was not understood to require such emptying. For a progressive jurisprudence, there is no need to overturn that system.
So, how do the four more moderate or conservative justices get reeled in by Kagan and Ginsburg here? Textualism is her bait. The statute says what it says, Kagan writes, and we cannot do otherwise. We have access to dictionaries, we know what these words mean, and they are broad definitions and viewpoint-based. The entire tone of Kagan’s majority opinion conveys a sense of, “There’s nothing to see here.” We’re not changing constitutional interpretations to which conservatives acquiesced decades ago, and we’re not doing anything but defining words and putting them in the appropriate box. Move along. In many ways, this tone is similar to the most famous recent example of textualism serving to advance progressive goals: Justice Gorsuch’s decision in Bostock finding that Title VII of the Civil Rights Act of 1964 applies to discrimination on the basis of sexual orientation and gender identity.
Textualism as a Hindrance to Traditional Legal Interpretation: Alito’s Concurrence
But even if conservative justices would be more interested in preventing immoral or scandalous marks from being granted benefits under trademark law, Justice Alito’s concurrence demonstrates how they nevertheless play along. Textualism is simply principled adherence to the text, and it’s too bad Congress drafted the law using the wrong magic words. But the Court can’t rewrite statutes, and in Alito’s view, “a law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends.” As Vermeule notes in Common Good Constitutionalism, worries about abuse of power are always directed to government officials. Legal conservatives are myopically unable to see abuse of the common good by private actors with the same level of urgency. And among potential governmental abuses of power, I hope that rogue trademark examining attorneys, nefariously and selectively deploying their powers to deny protection to arguably naughty trademarks, are not high on the list of severe abuses of power. In essence, we see in Alito’s opinion a deep suspicion of government action as ever being conducive to the common good, and Congress and agencies should be given no deference.
In any case, Alito’s short concurrence demonstrates how textualism is used by conservatives as a screen for “principled decisionmaking,” when in fact it is simply a failure to live up to the consequences of their failure to judge. “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,” Alito writes, suggesting Congress just needs to write a better statute. What words would Alito use? Vulgar? Shocking? Offensive? These are of course dictionary synonyms for “scandalous,” which he just agreed was unconstitutionally broad. Like Gorsuch’s twisted interpretation of Title VII in Bostock, a wooden textualism such as Alito’s would render impossible any Congressional attempt to rewrite the statute to cover what it plainly intended to at the time of enactment.
Here, too, is an exemplary instance of the Court’s foremost originalists arriving at a decision that is at odds with common good jurisprudence. The common good, as discussed below, would simply ask whether Congress has reasonably determined a rule to promote stated public purposes. In contrast, the originalists here ignore the original public meaning and purpose behind the words “immoral and scandalous” when they were enacted in 1905 and reenacted in 1946, at a time when the jurisprudential landscape was very different. And they ignore that the Founding Fathers almost certainly did not understand the First Amendment to apply to commercial speech (as statutes about public decorum and regulation of trade in the 18th century common market attest). Rather they take statutes out of context, apply a modern interpretation of the First Amendment, and arrive at a conclusion that Alito seems to detest but does nothing to resolve. Brunetti may be a somewhat silly case, but it is exemplary of the kind of reasoning that conservatives have come to fear from originalists on the Court in more impactful cases.
Complicating Textualism: Sotomayor’s and Roberts’ Dissents
Each of the dissenting justices—Sotomayor, Breyer, and Roberts—agreed with the majority that the bar on “immoral” marks fell as viewpoint based. They differed in that they believed the bar on “scandalous” marks could be independently salvaged. Justice Sotomayor’s dissent was joined by Breyer, who also wrote a separate dissent addressed below. She walks through a standard textualist rejoinder to the majority, stating first that the term was ambiguous and that a reasonable limiting construction would be to apply “scandalous” to obscene, vulgar, or profane marks. She then walks through the intermediate scrutiny analysis to arrive at the conclusion that such a construction would be constitutional. For reasons he does not make clear, Roberts does not formally join Sotomayor’s dissent, but he states that he agrees with Justice Sotomayor’s narrowing construction in his own four-paragraph dissent.
For our purposes, the most important part of each of their dissents is the pains taken to make two points. First, everyone denies that the government is making or can make any moral judgment when denying trademarks. No justice suggests that the government could deny registration simply on the basis of immorality. Second, they both reiterate that no one is actually being prevented from speaking; the government is simply choosing not to confer a benefit. Sotomayor writes, “the First Amendment protects Brunetti’s right to use words like the one at issue here,” while Roberts concludes, “the First Amendment protects freedom of speech;” it’s simply that the Government is not required to “give aid and comfort to those using obscene, vulgar, and profane modes of expression.” Sotomayor’s and Roberts’ dissents demonstrate that, even in losing, they are still playing by the rules of modern progressive and originalist jurisprudence. For those seeking to reconnect the law to the general welfare and the common good, that’s a losing game.
A Halfway Attempt at a Common Good Opinion: Breyer’s Dissent
I finally turn to Breyer’s dissent, the most interesting opinion of the quintet. He astutely notes that the provision in question, which grants a government benefit to certain private activity, does not easily fit into any of the usual categories of First Amendment speech. Picking up a point I raised in my first post on this case, he dismisses the idea that trademarks are “commercial speech” because they serve a “commercial function” to identify a product’s source. He adds that offensive and vulgar words are specifically used to attract attention and to emotionally provoke viewers and listeners, which also affects the function of the market.
Rather than sticking to the usual First Amendment playbook of asking whether the statute is viewpoint based or neutral and then applying the appropriate tier of scrutiny, Breyer “would appeal more often and more directly to the values the First Amendment seeks to protect.” Ultimately, he asks whether the provision in question “works speech-related harm that is out of proportion to its justifications.” Breyer concludes that the limited harm to speech in such a case is outweighed by the government’s decision to regulate speech in commercial contexts to protect the function of the market, especially in cases where children may be present.
In so many words—and in his characteristically Breyeresque attempt to formulate a multi-factor balancing test—Breyer is getting to a key point. Does the government have legitimate reasons to prevent the use of scandalous marks? Yes. Did Congress draw a reasonable line? Yes. Does that line harm core First Amendment values? No. Then the court should defer to Congress.
This is reminiscent of Justice Harlan’s opinion in Mugler v. Kansas and his dissent in Lochner, which Vermeule highlighted here and in his book as model opinions of common good constitutionalism. Of course the state can make reasonable laws directed to the common good, and a bar on scandalous marks is such a reasonable statute. Unlike Alito, Breyer would defer to decisions by Congress and the agency applying the statute, however imperfect such application may be.
My only complaint here is that Breyer does not go far enough—the same analysis should apply to the immorality bar as to the scandal bar.
A Hypothetical Common Good Opinion in Brunetti
How might such an opinion be structured? First, the opinion would recognize that the government and courts themselves have permitted decisions based on moral conclusions before. The multiple examples of blasphemy laws cited above are one line of cases, but we need not even leave the realm of intellectual property law. As I have described with respect to patents, Justice Story understood the utility requirement to prohibit patents being granted to “mischievous or immoral” inventions, setting up a line of precedent that lasted until 1936. Indeed, a decision to deny patent protection, like denial of a trademark registration, is not a bar against use of the invention itself but rather simply a denial of governmental benefit. (In fact, not even the Supreme Court or the Federal Circuit has suggested that Justice Story’s moral gloss on the utility requirement is unconstitutional—just that it does not apply under the current patent statute.)
Second, the court opinion would recognize that Congress is acting within its sphere of competency. It is within the powers of Congress to regulate interstate commerce, including the tenor and civility of that commerce. Furthermore, Congress has specifically granted the Patent & Trademark Office the faculty to make those decisions on a case-by-case basis.
Third, Congress may act on a reasonable conception of the common good in that sphere. As Justice Breyer writes, Congress may act to ensure that the marketplace remains a place of common courtesy, particularly in the case of trademarks that serve an important role in the functioning of the market.
Finally, reasonable and nonarbitrary decisions by a trademark examining attorney would be upheld. This is where Alito’s concerns about abuse of power really fall apart. Denial of trademark registration is not a matter of urgency, and courts can review any decision to deny for arbitrariness. But both immorality and scandal in the common marketplace are reasonable bases for Congress to deny government benefits. Assuming the decision is reasonable in a particular case, courts should then defer.
In short, the public authority may act for the common good, including the promotion of health, safety, and morals in the commons. It does so by making reasonable determinations about the means to promote its stated public purposes, namely, that immoral and scandalous marks should not receive government protection. In such cases judges must defer. A simple enough summary—one Vermeule himself would recognize. For a conservative in the common good tradition, this is an exceptionally easy case, and we should wonder why the originalists on the Court strive so hard to obtain the wrong result.