F-word wins in Supreme Court free speech case on trademark protection for 'immoral, scandalous' material

Richard Wolf

WASHINGTON – The Supreme Court defended free speech Monday, even for four-letter words. 

Faced with a clothing line called FUCT, the justices struck down federal prohibitions against granting trademark protection for "immoral" or "scandalous" material as unconstitutional.

The vote was 6-3 in an opinion written by Associate Justice Elena Kagan. Chief Justice John Roberts and Associate Justices Stephen Breyer and Sonia Sotomayor dissented.

"The First Amendment does not allow the government to penalize views just because many people, whether rightly or wrongly, see them as offensive," Kagan said from the bench in announcing the decision.

The three dissenters agreed that "immoral" covers too broad an array of potential trademarks but said the ban on "scandalous" trademarks should stand.

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"Refusing registration to obscene, vulgar or profane marks does not offend the First Amendment," Roberts said. "The First Amendment protects the freedom of speech; it does not require the government to give aid and comfort to those using obscene, vulgar and profane modes of expression."

And Sotomayor said that under the court's ruling, "the government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane or obscene words and images imaginable.

The case was brought by Erik Brunetti, founder of the 30-year-old streetwear clothing line, who previously met a blockade at the U.S. Patent and Trademark Office. A federal appeals court overturned that decision, prompting the government's Supreme Court petition.

The government already could not stop Brunetti from selling his wares, which the Justice Department pointedly noted are available even in children's and infants' sizes. The issue was whether he deserved to register his trademark – a federal benefit that makes it harder for competitors to challenge.

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The "FUCT" case is the second one in three years contesting trademark registration restrictions. In 2017, the court ruled unanimously that trademarks considered to be disparaging nonetheless deserve First Amendment protection. 

That was a victory for an Asian-American dance band dubbed The Slants, a name they said they reappropriated as a badge of pride. The ruling also protected the Washington Redskins football team, whose trademarks had been cancelled following complaints from Native Americans.

During oral argument in April, several justices noted a ruling for the FUCT clothing line would lead to even more vulgar trademarks, such as racial pejoratives. Chief Justice John Roberts called it the "promotion of vulgarity."

This article originally appeared on USA TODAY: F-word wins in Supreme Court free speech case on trademark protection for 'immoral, scandalous' material