Trademarks, even ones that may offend many people—of which the Patent and Trademark Office (PTO) has registered plenty—are private speech, which the First Amendment prevents the government from censoring. As Justice Samuel Alito put it in a part of the opinion that all the justices joined (except Neil Gorusch, who didn’t participate in the case), “If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.”
It can’t possibly be that the full weight of the U.S. government stands behind such venerable slogans as “Capitalism Sucks Donkey Balls” and “Take Yo Panties Off,” as I described in my amicus brief on behalf of a “basket of deplorable people and organizations” that included P.J. O’Rourke, Flying Dog Brewery, and the Comic Book Legal Defense Fund. (For a more comprehensive list of registered marks that puts paid to the idea that trademarks constitute government speech, and any objective principle stands behind the disparagement clause, see the appendix to the brief of the Washington Redskins, whose trademarks should now be safe.)
The Court Divides Its Reasons for Agreeing
At this point, the Supreme Court split. Justice Alito, joined by Chief Justice John Roberts and justices Clarence Thomas and Stephen Breyer, explained why trademarks don’t constitute a subsidy or other type of government program (within which the government can regulate speech), and that the disparagement clause doesn’t even survive the more deferential scrutiny that courts give to restrictions on “commercial” speech.
The remaining four justices, writing through Justice Anthony Kennedy, would’ve ended the discussion after finding that the PTO was engaging in viewpoint discrimination against certain kinds of private speech. The government argued that the provision is viewpoint‐neutral because it applies equally to any trademark that offends anybody. “The logic of the Government’s [argument],” Kennedy responded, “is that the law would be viewpoint neutral even if it provided that public officials could be praised but not condemned.”
Showing that the division among the court’s members was somewhat artificial, Kennedy’s point echoed Alito’s analysis of the disparagement clause as “not an anti‐discrimination clause; it is a happy‐talk clause.” Likewise, the meaning and significance of the case as a whole can be summed up by the end of Kennedy’s opinion, which is worth quoting in full: