Supreme Court Strikes Down Federal Ban on ‘Scandalous’ Trademarks

Mairead McArdle

The Supreme Court ruled Monday that a federal law prohibiting “immoral” or “scandalous” trademarks from being registered constitutes a violation of the First Amendment.

By a 6–3 vote, the justices ruled in favor of a Los Angeles clothing line whose founder wishes to trademark the name “FUCT.” The government had argued that the brand’s name is “the equivalent of the past participle form of the paradigmatic profane word in our culture.”

The brand is “pronounced as four letters, one after the other: F-U-C-T,” Justice Elena Kagan wrote for the majority. “But you might read it differently and, if so, you would hardly be alone.”

However, Kagan continued, the federal law prohibiting “scandalous” trademarks “infringes the First Amendment” because it “disfavors certain ideas.”

“Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends,” Justice Samuel Alito wrote in a concurring opinion.

Justices Kagan and Alito were joined by Justices Neil Gorsuch, Brett Kavanaugh, Clarence Thomas, and Ruth Bader Ginsburg in the majority. Chief Justice John Roberts, joined by Justices Stephen Breyer and Sonia Sotomayor, wrote for the minority.

“The First Amendment protects the freedom of speech,” Roberts wrote in his dissent. “It does not require the government to give aid and comfort to those using obscene, vulgar and profane modes of expression.”

Monday’s decision recalls the Court’s 2017 decision to overturn a federal law barring disparaging trademarks, which allowed Asian-American rock band The Slants to register their name, a slur toward those of Asian descent that the band aimed to “reclaim.”

“The band members believe that by taking that slur as the name of their group, they will help to ‘reclaim’ the term and drain its denigrating force,” Justice Alito wrote in the majority opinion in that case.

More from National Review