In a previous post, I explained how the Supreme Court of the United States vacated the provision in the Lanham Act — which governs American trademark law — prohibiting trademarks that “disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Such trademarks, the Court determined, express viewpoints, and the First Amendment protects speech from viewpoint discrimination. In a concurring opinion, Justice Anthony Kennedy acknowledged that Matal v. Tam, the case in question, did “not present the question of how other provisions of the Lanham Act should be analyzed under the First Amendment,” but if the Court sticks to its rationale in that case, it will have to extend First Amendment protection to all kinds of strong language, not just slurs but profanity and obscenity, too. I could call my pro-profanity nonprofit advocacy group Express Your Damned Self® and register the name as a trademark because Fuck the Lanham Act® — that’s our slogan— and there’s not a damned thing you or the Patent and Trademark Office could do about it.
The Lanham Act precludes registration of trademarks that include “immoral, deceptive, or scandalous matter,” in other words — putting deception aside — no profanity or obscenity. For instance, in 1998, The Boulevard Entertainment, Inc., attempted to register JACKOFF and 1-800-JACKOFF as trademarks useful in providing “entertainment in the nature of adult-oriented conversations by telephone” — phone sex. Registration was refused, the Boulevardiers appealed to the Trademark Trial and Appeal Board, the original decision was upheld, and that ruling was appealed to the United States Court of Appeals for the Federal Circuit which, on 9 July 2003, upheld the TTAB ruling. According to several dictionaries cited by the government, jack-off ‘masturbate’ is “vulgar,” which, one notes, is not necessarily the same thing as “scandalous” or “immoral,” but which American courts usually takes as the same. That viewpoint is typical of the trademark bureaucracy, guided by the Lanham Act, and the courts have supported that viewpoint.
The Supreme Court’s opinion Matal v. Tam reminds everyone that when the government exercises viewpoint discrimination, it offends the First Amendment. You can see where I’m going with this. Profanity and obscenity express viewpoints just as surely as racial slurs, so the First Amendment protects us from official meddling in our profane and obscene speech.
Obviously, jack off in the trademark context expresses viewpoints. The Boulevardiers think masturbation is fun, or at least think that other people think it’s fun — they’re on the side of self-pleasure, not self-humiliation. They think the most exciting part of masturbation is ejaculation, which is where the jack comes from, with the off evoking the image of an ultimate, euphoric spurt. They think some guys want company while masturbating, perhaps even need company to jack off, and they further think it’s a public service to enhance sexual pleasure. You don’t have to agree. You and the government may find these viewpoints disgusting. And you can say so publicly, protected by the First Amendment. But government, in the process of trademark registration, can’t discriminate against those viewpoints. A student once came into my office with a t-shirt that proclaimed Fuck yeah, and I asked her if she was into Tumblr’s Fuck Yeah microblogs and she replied, “No, I just thought it was a great attitude towards life.” Viewpoint. Expressive.
The rationales underlying the Lanham Act’s prohibition of disparaging and scandalous trademarks are similar, if not identical — such trademarks express harmful, hurtful, morally repugnant viewpoints. The Supreme Court’s rationale in allowing disparaging trademarks applies just as well to scandalous ones — government can’t interfere with the expression of viewpoints. It would be odd, wouldn’t it, if you could register a slur against Native Americans or any group or individual but not an exuberant, optimistic, and essentially harmless Fuck yeah, or a somewhat disgusting but market-canny 1-800-JACKOFF. Only an inconsistent or — dare I say — hypocritical Court could rule in favor of one stigmatized expressive category of speech but against the other.
This newly found freedom of speech might extend beyond trademarks. Back in the day, some Americans tried to order scandalous custom license plates. States denied such applications, but in the late 1970s, the American Association of Motor Vehicle Administrators “assembled lists of objectionable combinations of symbols which it [had] gathered from various state motor vehicle offices,” according to Frank Nuessel, who teaches at the University of Louisville and edits the American Name Society’s excellent journal Names. He reported some of the objectionable items in the late, lamented journal Maledicta in 1982.
Nuessel’s examples include references to various body parts (e.g., ASS, COCK, PRICK, PUSSY); exhortations (e.g., EATME, SUCKIT, BULLSHT, UPYOURS); non-English profanity (e.g., CON ‘cunt’, CUL ‘ass’, MERDE ‘shit’, CHINGA ‘fuck’); and sex acts (e.g., FUK, SUK, 4NCATE). Imagine an America so free that we could express our viewpoints on such matters on license plates, like so many mobile billboards. All the profanity and innuendo would make driving more interesting, as well as more dangerous, since we’d constantly be tailgating one another to read the plates. Well, maybe no more dangerous — we already tailgate to read the finer print on bumper stickers.
Arguably — and when the time comes, lawyers will argue it — license plates are different from trademarks. In Walker v. Texas Division, Sons of the Confederacy, the Supreme Court ruled — by a majority of five to four — that Texas could refuse a request for a specialty license plate with the Confederate battle flag as part of its design, because “specialty license plate designs constitute government speech.” In determining license plate design, then, Texas did not step on Constitutionally protected speech of private individuals and groups.
But is it really government speech? In Matal v. Tam, the government argued that by virtue of the registration process, trademarks are government speech but didn’t come close to convincing the Court. It’s not immediately clear why the application process for a specialty license plate transforms an applicant’s expressive viewpoint into government speech. Interestingly, the dissenting opinion in Walker — written, like the majority opinion in Matal v. Tam, by Justice Samuel Alito — opens with a similar point: “The Court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing.” In other words, the majority in Matal v. Tam and the minority in Walker were motivated by the same principle, and one can imagine Walker overturned by the Court on that basis at some future time.
Naturally, some will worry that racial slurs, crude obscenity, and downright profanity will soon flood the American commercial landscape, bruising our sensitivities and harming children. But all that strong language is used publicly in America, and allowing it to be registered as trademarks doesn’t make it any more harmful. The Redskins weren’t barred from naming their team the Redskins. They just couldn’t sue people who sold t-shirts sporting the word Redskins. The Boulevardiers can use 1-800-JACKOFF in commerce, but they can’t keep other suppliers from palming off their inferior phone sex to confused consumers. If they could register the mark, we’d have a lot fewer jackoffs out there — search the Internet, and you’ll see what I mean. Anyway, as our verbal liberty expands, Americans will just have to accept the risks that attend it.