Ethics Alarms Reader Poll: Will The SCOTUS Decision on “Fuct” Be Unanimous?

It should be. It’s amazing to me that this issue has to take up the time of the Supreme Court, it’s so obvious.

Last week, the U.S. Supreme Court agreed to review that case of Iancu v. Brunetti, and decide whether the Lanham’s Act’s ban on “immoral” and “scandalous” trademarks violates the First Amendment. The U.S. Patent and Trademark Office had refused to register a trademark for a line of clothing called “FUCT,” reasoning that “FUCT is the past tense” of a vulgar word and is “therefore scandalous,” a federal appeals court said. The U.S. Court of Appeals for the Federal Circuit had struck down the ban on scandalous and immoral trademarks in December 2017,  but clothing designer and artist Erik Brunetti had agreed that the Supreme Court should hear the case even though he had won.  The cert petitions are here and here.

The Supreme Court struck down another provision of the Lanham Act in June 2017,  when it held that the ban on “disparaging” trademarks violated the First Amendment. The case, Matal v. Tam, was filed by an Asian-American rock band that wanted to trademark the name the Slants. The vote was 8-0 because Justice Neil M. Gorsuch did not participate in the decision. That decision also squashed efforts begun by Democrats and the Obama Administration to force the Washington Redskins to give up their “offensive” team nickname. The team’s trademarks had been cancelled in 2014 following complaints from “offended” non-football fans and a small minority of Native Americans. Justice Samuel Alito wrote for the Court,”It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”  The opinion rejected the government’s argument that protected trademarks become a form of government, rather than private, speech.

Brunetti’s lawyer argues now that the U.S. Patent and Trademark Office has made arbitrary decisions in the past about what is scandalous;  for example, it had approved a trademark for another iteration of “fuck,”as well as the phrase “WTF IS UP WITH MY LOVE LIFE?!”

Last time I was certain that the Courts would vote unanimously I was tragically wrong, here. Is my confidence warranted this time? The previous 8-0 decision in a similar matter bolsters my belief, as does the fact that conservatives on the courts can be relied upon to support freedom of speech, and the liberals on the Court are a different species from the Democratic Party’s current “hate speech” banning progressives. Standards like “immoral” and “scandalous” in the Lanham Act seem both vague and quaint.

Here’s the poll:

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Sources: ABA Journal, USA Today

23 Comments

Filed under Business & Commercial, Etiquette and manners, Government & Politics, Law & Law Enforcement, Marketing and Advertising, Rights

23 responses to “Ethics Alarms Reader Poll: Will The SCOTUS Decision on “Fuct” Be Unanimous?

  1. Jeff H.

    I couldn’t tell you how Kavanaugh will vote, as he’s still pretty new. But I hope it’s unanimous. This is trivial, but it’s amazing how some justices get some of this stuff so wrong sometimes.

  2. Matthew B

    I vote for 6-3.

    Roberts, Ginsburg, Breyer, Alito, Gorsuch and Kavanaugh will vote for Brunetti.

    Thomas will vote with his own dissenting opinion on the larger “offensive” issue.

    Kagan and Sotomayor will be “woke” and want to keep the ability for the PTO to be able to enforce political correctness.

  3. Wayne

    I hope it goes unanimous: Freedom of speech is freedom of speech and we certainly don’t need a Hays Code for clothing.

    • Wayne wrote: “I hope it goes unanimous: Freedom of speech is freedom of speech and we certainly don’t need a Hays Code for clothing.”

      The opinion rejected the government’s argument that protected trademarks become a form of government, rather than private, speech.

      It seems to me that it is good and proper to ban the word as a trade-name. For example, if Nike meant something obviously vulgar to grant it status as a trade-name would be to condone seeing the name everywhere.

      If it is now legal for any obscenity to be used in public, displayed in public, seen by children and also people who do not wish to see the obscenity, then the US would have no case against the use of an obvious (intended) obscenity as a trade-name.

      But as it stands — I hope — there are prohibitions against the public display of vulgarities. Like on billboards or in ads.

      This is different than the use of vulgarity in a novel, a film, in art, and it really isn’t comparable to a Hays Code for clothing. It has to do with a trademark that could then advertise everywhere and be visible.

      • Wayne

        I can see your point about clothing especially regarding families and kids. Perhaps a reasonable compromise would be to request clothing manufacturers not to manufacture clothing in kids sizes with offensive logos and chains not to sell them. However, what I wear in a bar is my own damn business. We don’t need clothing police like they have in fundamentalist societies.

        • Truthfully, I am one of those persons who operates from a ‘fundamentalist’ perspective! In fact I try to find the philosophical arguments to support fundamentalism (social traditionalism, social conservatism, etc.)

          But I do at the same time understand your position and your concerns.

          What I say about this is that there are cycles in cultures where, at one time, strict mores dominate. That is usually the time when culture (and civilization) is constructed. Then, people advocate for loosening of restrictions (for example DH Lawrence and his essay in pro of pornography). Then, little by little, the liberalizing trends increase. Always asking for more. Then demanding more.

          Finally — this is a logical outcome — no one is left to distinguish what is *right* and *proper*.

          Then, there is a reactionary social movement that swings things in the opposite direction.

          What adults do, children will do. The idea of separate behavior sets is a deceptive one. It is the business of children — part of adaptive strategy — to observe and imitate what adults do. Put simply, if your culture becomes a vulgar, pornographic culture, you must accept that you will have vulgar, pornographic children.

  4. Sarah B.

    I don’t know, from my what I see in my news feed, will RBG be able to vote? Both sides seem equally freaked out about her health, either from the “it’s time to retire before you die witch” or the “she’ll never give in before the Nazis leave the White House” perspectives. I’d hate to bet either way at this point. However, I’d give it a strong shot at unanimous, except for that.

  5. PennAgain

    Ban bans. Especially boy bans.

    • “Ban bans.”

      You’ll have to pull my polarized Predator 2 & mock tortoise Original Wayfarers off my cold dead nose bridge & ears…

      “ ‘FUCT is the past tense’ of a vulgar word”

      Shouldn’t that be sounds like the past tense of a vulgar word?

      Anywho, don’t they have bigger Pho Keene FISH to fry?

    • dragin_dragon

      Penn, the “d” key is not working on your keyboard.

      • PennAgain

        See, I have this ultralight keyboard that I occasionally push up on the mouse pad when I’m typing more than 60mph, deadening one or two keys that hit the high spot. However, those particular lines was meant to be d-less, just for the poetry of it.

  6. Brunetti’s lawyer argues now that the U.S. Patent and Trademark Office has made arbitrary decisions in the past about what is scandalous; for example, it had approved a trademark for another iteration of “fuck,”as well as the phrase “WTF IS UP WITH MY LOVE LIFE?!”

    This does not surprise me. Eventually — that is in the absence of s social uprising where certain moral and ethical outlines are reestablished — the general direction of degeneracy will continue.

    I would imagine that the first evidence of a *crack* in the edifice that can recognize destructive vulgarity (if it is not destructive then why ban it?) would be ‘ambiguity’. That is, confusion about what stance to take, or problems in enforcing a general rule.

    Step by step: down into the abyss. Strange how an apparent *gain* in what is called *freedom* tends to result in the opposite, that is when seen in the long view.

    • You are doing a great job commenting lately… who are you and what have you done with Alizia?

      🙂

      I believe that compromise is how one breaks down a society… a little, rational, emotional appeal at a time. Appeal to people’s emotions and natural lazy attention spans to move the ball slowly…

  7. I don’t think it will be unanimous, society is too polarized that the court won’t channel it a little. But, as it sounds like a free speech issue it will have few if any dissenters, I won’t guess who it will be though.

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