WASHINGTON -- Los Angeles artist and entrepreneur Erik Brunetti sells his T-shirts and streetwear online, and he wants the protection of a registered trademark. But his brand is a four-letter word: FUCT.
The Supreme Court heard a lively argument Monday on whether the First Amendment's protection for the freedom of speech extended to words and symbols that the government's trademark office viewed as "scandalous."
The lawyers and justices managed to debate the case for an hour without uttering the disputed word, which Deputy Solicitor Gen. Malcolm Stewart referred to as the "past participle form of a well-known word of profanity."
The 1946 federal trademark law says the government should reject registering words or symbols that are "immoral" or "scandalous."
That is "not a restriction on speech, but a valid condition on participation in a federal program," Stewart told the court. Brunetti is free to say what he wants or sell clothes bearing his FUCT brand, he added, describing a registered trademark as a "government benefit."
But John R. Sommer, an Irvine, Calif., attorney who represented Brunetti, said the "scandalous" provision should be struck down because it was "so incredibly broad. ... There is a substantial amount of speech that is improperly refused under this provision." He also noted the Trademark Office had been notoriously inconsistent in recent years. It has registered a series of trademarks that involve variations of late comedian George Carlin's famous "seven dirty words" while rejecting similar variations.
Justice Elena Kagan said she was skeptical of upholding the old law because it was outdated and overly broad. It "includes things that are offensive because of the ideas they express," she said. "If Congress wants to pass a statute that's narrower, that's focused on vulgarity or profanity, then Congress can do that."
But Justice Stephen G. Breyer questioned why the court should open the door to authorizing the use of racial slurs and vulgar words as official trademarks. "Why doesn't the government have a right to say: 'This is a commercial matter, purely commercial.' Why can't the government say we don't want to be associated with this?" he asked. "That doesn't forbid anyone from using the word."
Two years ago, the court ruled for an Asian band that called itself the Slants and struck down the part of the trademark law that prohibited the use of "disparaging" words. "Speech may not be banned on the ground that it expresses ideas that offend," Justice Samuel A. Alito Jr. said then in the case of Matal vs. Tam.
Brunetti has been selling his clothes since 1991. He applied to register his trademark in 2011 and sued after being turned down by the U.S. Patent and Trademark Office.