Ridiculous Trump Joke T-Shirt Gets Its Day Before the U.S. Supreme Court

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In early 2016, Florida Sen. Marco Rubio attempted to jump-start his sputtering bid for the Republican presidential nomination by starring in one of the most agonizing political moments of the past decade. Speaking to supporters in Virginia, Rubio, whom Donald Trump had nicknamed “Little Marco,” graciously conceded that Trump, at 6-foot-2, is tall. But then came the punchline: “I don’t understand why his hands are the size of someone who’s five-two,” Rubio said. “And you know what they say about men with small hands.”

If you are a normal person, perhaps hearing a vanity presidential candidate uncork a cringe-inducing double entendre about an opponent’s genitalia size made you want to put down your phone and walk into the nearest ocean. Steve Elster, though, saw a business opportunity. In 2018 the California lawyer attempted to register a federal trademark for the phrase Trump Too Small to print on T-shirts, accompanied by a graphic of the universal hand gesture for, well, “too small.” According to Elster, he intended this bit of toxic masculinity–infused political commentary to convey his view that “some features of President Trump and his policies are diminutive.”

The U.S. Patent and Trademark Office rejected Elster’s application on two grounds, neither of which involved the words remarkably poor taste. First, under Section 2(c) of the federal trademark statute, which is known as the Lanham Act, trademarks that include a living person’s name cannot be registered without their written consent, which (it will shock you to learn) Elster had not obtained from the literal president of the United States. Second, Section 2(a) of the Lanham Act bars the registration of trademarks that “falsely suggest” a connection to a person, whether living or dead—in other words, trademarks that might give the impression that, again, the literal president of the United States was selling T-shirts emblazoned with an assertion about the relative size of his penis.

The U.S. Court of Appeals for the Federal Circuit, however, eventually reversed, holding that using Section 2(c) to deny Elster’s trademark application interfered with his right to denounce the Trump White House’s myriad demonstrations of incompetence. “The government does not have a privacy or publicity interest in restricting speech critical of government officials or public figures in the trademark context,” the court wrote.

On Wednesday, the Supreme Court heard oral argument in Vidal v. Elster, the government’s appeal. And although the court has demonstrated its willingness to weaken intellectual property law in the name of promoting free speech, the justices seemed skeptical that the modest goals of the federal trademark statute should yield to the right of aspiring anti-Trump clothing moguls to turn a profit.

Both parties framed themselves as the true champions of First Amendment values. Elster contends that the Lanham Act’s consent requirement gives politicians de facto veto power over trademark applications that include their names, since no one, presumably, is going to consent to a rude trademark. One of the Lanham Act’s foundational goals is to limit consumer confusion about who is selling what product. Thus, Elster’s lawyer argued, any interest the government may claim in “discouraging marks because they hurt the feelings of public figures has nothing to do with the purposes of trademark registration.”

The problem for Elster is that failing to register with the U.S. Patent and Trademark Office doesn’t actually bar him from becoming a purveyor of novelty penis-themed T-shirts, which remain on sale for the discounted price of $29.99. It just means that Elster has fewer legal options to stop other people from entering the apparently booming novelty penis-themed T-shirt market. On Wednesday, several justices seemed stuck on this very basic proposition. Justice Clarence Thomas, for example, asked Elster’s counsel to delineate “what speech precisely is being burdened,” and sounded unconvinced that losing out on the economic benefits of registration is enough to justify judicial intervention. “If your argument is that somehow your speech is being impeded, I think it would be good to know precisely how it’s being impeded,” Thomas said.

Justice Sonia Sotomayor piled on. “I’m sorry, Counsel,” she said. “Your whole answer is making me think that you’re just conceding the other side’s point” that federal registration is merely a “government benefit,” on which the government can impose reasonable conditions without running afoul of the First Amendment. Failing to register a mark, Sotomayor continued, “doesn’t stop you from selling anywhere as much as you want,” since registration is just about trying to secure “the benefit of stopping others from competing with you.” In other words, to the extent that selling shirts constitutes “speech,” denying Elster an exclusive right to do so does not abridge it.

The government, meanwhile, argues that granting Elster a registered trademark could prevent others from exercising their First Amendment rights, since it would empower Elster to drag people into courtrooms for making their own unlicensed jokes about Trump’s dick. Chief Justice John Roberts sounded sympathetic to this point, floating the possibility that Elster, not the government, is “the one who is undermining First Amendment values” in this case. Ever the steward of the federal judiciary’s resources, Roberts also worried about kicking off a “race for people to trademark, you know, ‘Trump Too This,’ ‘Trump Too That,’ ” which, he said, could cut off “a lot of expression other people might regard as important.”

It’s no surprise that someone in Elster’s shoes would push a case like this one, given the court’s skepticism of some of the Lanham Act’s more puritanical provisions. In 2017’s Matal v. Tam, for example, the court declared unconstitutional the prohibition on trademarks that “disparage” certain people or groups, which Justice Samuel Alito characterized as a “happy-talk clause” that limits speech merely because the government deems it offensive. Two years later, in Iancu v. Brunetti, the court decided that the bar on “immoral” or “scandalous” trademarks—in that case, the clothing brand FUCT—is also unconstitutional, since determining a trademark’s morality and/or scandalousness necessarily requires the state to make value judgments about its content.

For as long as this court is controlled by a six-justice conservative supermajority, lurking beneath the surface of First Amendment cases like these is the tension between the justices’ vigilance about the excesses of cancel culture on the one hand, and the distaste for speech they personally find rude or uncouth on the other. Alito, an ardent defender of conservative law students whose classmates are kind of mean to them, wrote a concurrence in Brunetti affirming his solemn duty to uphold First Amendment principles “at a time when free speech is under attack.” At the same time, he expressed hope that Congress would adopt a “more carefully focused statute” barring “vulgar” trademarks that, in his opinion, serve only to “coarsen our popular culture.” Given the state of Congress in 2019 and 2023 and for the foreseeable future, I would not hold my breath.

Intellectual property is only one area of law that the court’s recent First Amendment jurisprudence has infused with a considerable amount of uncertainty. Together, Brunetti and Tam yielded eight separate opinions, and I wouldn’t be surprised to see several opinions in Elster in which different justices ruminate about how they would update the Lanham Act if only they had the power to do so. At the same time, the justices seem pretty confident that whatever obligations the evolving First Amendment imposes on the state, “hand out monopolies on #Resistance slogans to whoever launches an Etsy storefront first” is probably not among them.