Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida College of Journalism and Communications, is the author of “These Four Letters Spawned Five Supreme Court Opinions” published on CNN.com on June 24.

Calvert comments on a recent decision made by the Supreme Court that will allow businesses to register racy and offensive trademarks. The decision in lancu v. Brunetti struck down a law giving the UF Patent and Trademark Office the power to deny such requests by deeming them “immoral” and “scandalous.”

“This result is a clear victory for free speech, but it also shows that some of the justices are hesitant to protect all forms of offensive expression,” said Calvert.

In the decision, Justice Elena Kagan concluded that the ban on such trademarks was unconstitutional because it “disfavors certain ideas.”

“Indeed, a key principle of First Amendment law is that the government cannot engage in what Kagan called ’viewpoint-based’ discrimination,” said Calvert. “In other words, the government must not take sides on any subject — limiting a person’s ability to choose a trademark based on individual justices’ ideas of morality.”

The case was based on Erik Burnetti’s attempt to register the mark “FUCT” for a line of clothing. Some of the justices were torn about allowing individuals to register scandalous marks and three justices were willing to strike down the ban against “immoral” marks but uphold the prohibition on “scandalous” ones.

According to Calvert, “For now, however, it is up to Congress to decide whether it wants to take another stab at drafting the ’scandalous‘ provision and heed the advice about how to do so offered by [Justices] Roberts, Breyer and Sotomayor. With a multitude of other issues already on its agenda, such as immigration at the southern border, that is not likely to occur any time soon.”

Posted: June 25, 2019
Category: College News, Marion B. Brechner First Amendment Project News
Tagged as: Clay Calvert, Marion B. Brechner First Amendment Project