Wednesday, June 21, 2017

Slightly cooler take on Tam

I will have some more thoughts in Tam in a forthcoming amicus brief arguing that dilution is unconstitutional.  I think this was about the least harmful affirmance the Court could have written, though for precisely that reason it leaves a lot up for grabs.  Right now, I will just say a few things: (1) It is now even harder to distinguish between content- and viewpoint-based regulation.  I thought that disparagement should be deemed content-based but not viewpoint-based because it was impossible to identify a disadvantaged “side”—whereas even in Rosenberger, one could identify a set of religious perspectives that were excluded from university funding.  I don’t think there’s a distinctive subset of disparaging perspectives in the same way.  (Justice Kennedy’s rejoinder, that this logic would allow bars on criticizing any government official, is particularly silly: because not everyone is a member of the category “government officials,” that’s not a level playing field at all.  Everyone is a member of the category “persons,” Eric Trump notwithstanding.  Marty Lederman talked a bit about this issue at Balkinization.)  But how this plays out in non-tarnishment/disparagement situations remains to be seen.

(2) The opinion for four Justices rejecting the “government program” argument is hard for me to understand. It’s true to say that most of the decisions on which the government relied almost all involved cash or their equivalent, but the opinion does a poor job of explaining why that matters.  The main argument is: well, fire and police protection are services too, and you couldn’t deny them to users of disparaging marks.  The answer to which—completely unaddressed in the opinion—is “that’s what unconstitutional conditions doctrine is for.”  Denying trademark registration because a trademark is disparaging is a far cry from denying police protection to the user of the mark.  Also, the opinion distinguishes two non-money subsidy cases involving unions by saying they were very different.  That’s nice … why?  The opinion’s language suggests a kind of speech/conduct distinction (“lawmakers chose to confer a substantial non-cash benefit for the purpose of furthering activities that they particularly desired to promote but not to provide a similar benefit for the purpose of furthering other activities”), but not a very persuasive one, unless—again—we do an unconstitutional conditions analysis.

(3) I’m glad the Court didn’t say anything about the relationship between unregistrable marks and §43(a) protection, and highlighted that it was not doing so. While I believe that the issue deserves resolution one way or another, this was a poor vehicle for the question because so much else was going on.  (But here’s a question: after this decision, can the common law engage in the viewpoint discrimination entailed in denying registration to immoral/disparaging marks by denying common law protection to such marks, as a number of states at least arguably do?)


Shubha Ghosh said...

The Court confuses viewpoint with emotions. The content based discrimination prong was avoided to get those who were critucal in Reed on board.

Interesting to compare with defamation, whuch in the private person context requires harm to reputation aline. For public figures, the FA protection seems to rest on (1) avouding chilling effects or (2) correcting imbalances in access to

My sense is the Court thinks the market for giids can limit the use of dusparaging or scandalous or immoral marks. People offended will just boycott. That may be right but pro-football may be to the contrary. Certainly speech based imbalances there.

Rebecca Tushnet said...

I don't think the Court cares about speech based imbalances--that's simply not a problem/harm from the majority's perspective (cf. Citizens United) unless they are the product of current government intervention, rather than, just for example, three hundred years of government and government-backed expropriation.

Anonymous said...

In the CAFC en banc opinion, the majority seemed to squarely hold that the Slants mark was being used as expressive speech rather than commercial speech. Alito, on the other hand, specifically declined to wade into that debate on page 24 of the SCOTUS opinion. Instead, he seemed far more concerned with explaining what trademarks aren't rather than what trademarks are/can be.

Personally, I thought the opinion read more like a "speech" opinion than a "trademark" opinion. Perhaps that's the way it should be given the registration context/questions presented on appeal, but I would have liked to see the court grapple with the reality of trademarks' social uses and functions. Then again, I suppose ruling that marks can function as expressive speech would have had larger implications, i.e. opening the door for future litigants in dilution claims to rely on the noncommercial speech exclusion (which maybe wouldn't be such a bad thing).