Wednesday, June 26, 2019

Profanity

by Michael C. Dorf

On Verdict, I discuss the SCOTUS decision in Iancu v. Brunetti. The title of my column: After Supreme Court Ruling, Are Profane Trademarks Truly “FUCT”? In light of the subject matter, I use profanity, so consider yourself forewarned. Meanwhile, I'll have a substantive post up later today, after the next round of decisions is handed down.

5 comments:

Shag from Brookline said...

After reading about "FUCT" at other Internet sites, I thought of "TRUMPT" and Googled to see if it's been used. And yes, it has, including by Urban Dictionary, which might apply "TRUMPT" to contractors of Trump Enterprises. Query: Has SCOTUS been "TRUMPT"?

I haven't read the Verdict column as yet, but the late George Carlin came to mind with this short post. Maybe the "other" six "dirty words" can be similarly adjusted as "FUCT" with SCOTUS' decision in this case serving as precedent. Maybe Carlin will have the last laugh.

Shag from Brookline said...

Back in the 1940s growing up in the Boston area, pre-TV, Bob & Ray were popular on local radio tied around broadcasts of Red Sox games. They would sometimes parody ads for products. One parody featured a new clothes washing soap, "FUG." At the time, two popular soaps were "Rinso" and "Duz." So Bob & Ray's spiel in introducing this new soap product was: "If "Rinso" won't rinse it and "Duz" won't do it, Then "FUG" it. Teenagers like me were ecstatic. But teenagers of today might just shrug. So perhaps in time "FUCT" will pass along in the manner of Bob & Ray's "FUG" it. But how might Trump's base of Revengelicals react to SCOTUS' contraceptivilization of this Trademark as a violation of religious liberty?

Jim said...

I concede your point that the latest ruling was foreshadowed, if not dictated, by the decision in Matal, but I'm not much of a fan of that decision. There's a big distinction, in my view, between criminalizing conduct (Cohen) and declining to confer an additional benefit (trademark registration), particularly where (as you recognize) the refusal to grant trademark registration doesn't curtail speech, but might even result in more speech.

In your column you suggest this argument "cannot be right" because it leads to the conclusion that trademark denial can "never" violate the First Amendment, but I don't follow this all-or-nothing logic. For example, let's stipulate the provision at issue in Iancu was properly struck down because its language leads to impermissible viewpoint discrimination. If you say it would be impossible to craft a provision that avoids this problem, aren't you saying it's impossible to enact obscenity laws?

Joe said...

There is a difference between criminalizing conduct and declining to confer a benefit, but for free speech purposes, it is unclear how much that matters. The unconstitutional conditions rule is of long standing.

"A trademark, trade mark, or trade-mark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks." (Wikipedia)

Viewpoint discrimination here is troubling. As to obscenity, the test is stricter than saying something is "immoral" or some such term.

I do think there is a problem ultimately with obscenity laws in application, if one more narrow. I'm unsure given the test what sort of mark would actually be obscene. It might be argued a racial epithet mark can be "fighting word" though even there a specific word itself isn't inherently one. It is so in context.

Dan Baker-Jones said...

Although several commentators have discussed Cohen v. California with regard to this decision, does Iancu have any impact on the continuing potency of FCC v. Pacifica Foundation? It seems to me that the rationale for Pacifica is strongly undermined by this latest decision.