Tuesday, June 25, 2019

The Supreme Court and the Tone Argument (Iancu v. Brunetti)

Iancu v. Brunetti, No. 18–302, 588 U.S. --- (Jun. 24, 2019)

Unlike in Tam, we get an opinion for the Court (and unanimity that the bar on registering “immoral” marks is unconstitutionally viewpoint-based), which manages to find consensus by (1) not saying very much and (2) backing away from some of the things in Tam that treated the case like one involving a penalty for an applicant’s speech rather than a failure to give a government benefit to the applicant.  Still doesn’t mention unconstitutional conditions, but because it goes off on viewpoint discrimination the majority doesn’t have to; the concurrence/dissents could have but don’t.  In my opinion, this was the best result given Tam: the Court recognizes, at least implicitly, that much of what the various opinions in Tam said was corrosive of trademark registration generally, and it would have been really ugly to declare that disparagement (which protected all sorts of groups) was viewpoint-based while scandalousness (which protected the sensibilities of the majority only) wasn’t.

Some observations: The distinction the concurrence/dissents would like to make between whether the core message of the applied-for mark is scandalous, or whether the manner of conveying the message is scandalous, could be made, but could benefit from grappling with what registration is.  That is, in theory we’re looking for symbols that perform a source-identifying function.  To the extent that we are distinguishing between FUCT and HAD SEX WITH, however, it’s not their ability to perform a source-identifying function that differs.  Implications: (1) The government’s interest in tone policing isn’t related to the basic purpose of trademark law; this might matter if we did an unconstitutional conditions  analysis, but might not if the Court, as the concurrence/dissents suggested, was willing to accept “incentivize the use of decorous marks” as a legitimate interest.  (2) As a number of others have noted, if we took functioning as a trademark more seriously, many of the parade of horribles that the Court wouldn’t even mention shouldn’t be registrable anyway because their semantic (“informational” or “ornamental”) content overwhelms their ability to serve as source identifiers.

Relatedly, I think it matters that nobody on the Court was willing to say “fuck” or even “the n-word,” resorting to linguistic workarounds that probably do as much as anything else to prove that specific words can have outsized power.  Did they expect a lot of kids to be reading?  And this prurience has doctrinal implication, as multiple opinions shied away from offensive words while insisting that non-offensive versions would convey the same (non-trademark) meanings, such that a ban on registering those words wouldn’t affect meaning.  Although I call bullshit on that as a factual claim, I also don’t think the factual claim is the end of the story.  Only the Sotomayor (partial) dissent cited Cohen v. California, and that was to make the point that Cohen involved a content-based restriction rather than a viewpoint-based restriction.  This is a reasonable argument, but it’s not the end of a real analysis of when a government program of allocating speech rights can engage in content-based restrictions.  And since the Court didn’t bother to reject the Federal Circuit’s reasoning—which relied on the bars at issue being content based and subject to intermediate scrutiny—we are far from done with this issue.

Specific thoughts on Kagan’s opinion for the Court: The opinion rejects the government’s attempt to rewrite the statute to focus on whether the way in which the applicant’s (non-source-identifying) message is expressed is scandalous, regardless of whether the message itself gives wide offense.  It’s perhaps not surprising that the opinion doesn’t discuss deference to executive branch interpretations of long standing; instead, it suggests that the PTO wasn’t mistaken to interpret the bar more broadly, given the facially broad language of the Lanham Act.  The majority doesn’t opine on a hypothetical statute that covered only “marks that offend by their mode of expression” or “lewd, sexually explicit, and profane marks.” Note that these aren’t the same thing—in particular, the n-word is probably not included in the latter, under an ordinary meaning of profane or profanity (probably a better word given the religious meaning of profane).

The opinion seems on particularly solid ground when it points out that overbreadth analysis is a bad fit for viewpoint-based laws. “Once we have found that a law ‘aim[s] at the suppression of’ views, why would it matter that Congress could have captured some of the same speech through a viewpoint-neutral statute?”

Alito’s concurrence: Vague reference to “viewpoint discrimination” being tolerated in other countries (insert your own example) and “increasingly prevalent” in this country, which is pretty perplexing if you think he’s talking about viewpoint discrimination with the force of law.  (Though perhaps he thinks it’s viewpoint discrimination if the government removes Christian crosses from public memorials or bans discrimination against LGBTQ+ people.)  He’s concurring not because of “moral relativism” (did anyone think he was?) but because “a law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends,” so he’s not done treating a registration bar like a speech ban.  FUCT could be denied registration under a more targeted statute, because “fucked” “is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary. The registration of such marks serves only to further coarsen our popular culture.”  So, some content-based regulations are cool.

Roberts, concurring (on “immoral”)/dissenting: Would accept the government’s rewrite of “scandalous” to bar marks that offend only because of their mode of expression.  Notices now, as he didn’t in Tam, that denial of registration is not denial of a right to use—it’s not even a denial of a right to use as a mark—and thus a registration bar requires different First Amendment treatment than a ban on “vulgar” or “profane” marks.  Argues now that the government “has an interest in not associating itself with trademarks whose content is obscene, vulgar, or profane,” without explaining what “associating itself” means in this context, again contra Tam.  Does not want to give “aid and comfort” to those using such marks.

Breyer, concurring (on “immoral”)/dissenting: Would do the same thing, but writes separately to be more of a technocrat and less of a moralist.  Consistent with his long-held views, wouldn’t put as much emphasis on the line between content and viewpoint based regulation, commercial and noncommercial speech, etc.  He would ask whether the regulation at issue “works speech-related harm that is out of proportion to its justifications.”

Maybe trademark registration is simply commercial speech regulation, but he’s not sure, because trademarks have “an expressive component in addition to a commercial one,” though the statute regulates the commercial function of trademarks. Registration isn’t really government speech, though the government “may be loosely associated with the mark because it registers the mark and confers certain benefits upon the owner.”  [Hey, did you know there’s actually empirical research on this by Daniel Hemel & Lisa Larrimore Oullette?  Ordinary citizens apparently are roughly split on whether registration is endorsement, which puts it in the middle of their reactions to what the case law says is clearly government speech and to what is clearly not government speech.]  Also, registration isn’t really a limited public forum, though it has some vague resemblance to one, and also it resembles cases involving government subsidies for private speech.  It’s all a big pudding.

Anyway, he didn’t think that a bar on registration of highly vulgar or obscene words discriminated based on “viewpoint.”  Though these words “often evoke powerful emotions,” they don’t “typically convey any particular viewpoint.”  And though such a bar would be “arguably” content-based, trademark law is content-based (citing Sonia Katyal, Trademark Intersectionality). A registration bar wouldn’t harm First Amendment interests much, because businesses would remain free to use the terms, even as marks, and could still register other marks.  Anyway, trademark is already highly regulated because its mission is to help consumers identify the source of goods or services, which requires limits on speech.  “For that reason, an applicant who seeks to register a mark should not expect complete freedom to say what she wishes, but should instead expect linguistic regulation.” [Have to admit, I find this a non sequitur: it regulates speech for a particular purpose, so it can add in limits for other purposes?  This is the strength of unconstitutional conditions analysis: it asks for a program-related justification rather than just allowing the government to disincentivize speech it doesn’t like because of the accident of having a benefit to hand out.]

What, then, are the government’s competing interests?  (1) Registration makes the government “necessarily ‘involv[ed] in promoting’” the mark. “The Government has at least a reasonable interest in ensuring that it is not involved in promoting highly vulgar or obscene speech, and that it will not be associated with such speech.”  (2) “[S]cientific evidence suggests that certain highly vulgar words have a physiological and emotional impact that makes them different in kind from most other words….  These vulgar words originate in a different part of our brains than most other words. And these types of swear words tend to attract more attention and are harder to forget than other words.”  [Citing a book about swearing (which, in fairness, may have actual citations) and a study, since this is not in the record.] Such words may today include “race-based epithets.” He continues:

These attention-grabbing words, though financially valuable to some businesses that seek to attract interest in their products, threaten to distract consumers and disrupt commerce. And they may lead to the creation of public spaces that many will find repellant, perhaps on occasion creating the risk of verbal altercations or even physical confrontations. (Just think about how you might react if you saw someone wearing a t-shirt or using a product emblazoned with an odious racial epithet.) The Government thus has an interest in seeking to disincentivize the use of such words in commerce by denying the benefit of trademark registration.
Finally, although some consumers may be attracted to products labeled with highly vulgar or obscene words, others may believe that such words should not be displayed in public spaces where goods are sold and where children are likely to be present. They may believe that trademark registration of such words could make it more likely that children will be exposed to public displays involving such words. To that end, the Government may have an interest in protecting the sensibilities of children by barring the registration of such words.

Thoughts: (1) if your goal is deterrence, then ordinary First Amendment jurisprudence does ask (a) does the government have a legitimate interest in deterring, as opposed to not being associated with, the speech at issue? and (b) will it work?  The parenthetical explicitly collapses the freedom to use the term with the freedom to register the mark—and imagines what is likely a non-trademark use, to boot.  Given that Breyer has already rested a lot of weight on continued freedom of use, and also argued that private companies have incentives to use these terms to attract attention to their wares despite overall harm to society, this reasoning is incoherent.  I am generally sympathetic to Breyer’s desire not to be so rigid in categories, but there is a point to asking about whether the speech suppressive measure at issue actually addresses the harm the government has posited.  (2) The second paragraph is even worse.  Some people “may believe” normative and causal claims—well, are they right?  Even if they’re not right, did we come to have the “scandalous” bar by some process in which the legislature reasonably accepted their arguments or evidence, to which the Court should defer?  [Answer: No, that’s not what happened because that’s not what Congress thought it was doing or needed to do.]  

Anyway, he would’ve accepted the government’s narrowing construction for this facial challenge, trusting to internal agency review to make sure that the PTO didn’t fall back on its old, bad ways of considering meaning.

Sotomayor, concurring (on “immoral”)/dissenting, joined by Breyer: Would have accepted the government’s proposal to limit “scandalous” to obscenity, vulgarity, and profanity/terms that are offensive because of their mode of expression and not their content (because she’s outvoted, she doesn’t need to reconcile the differences between these or explain how the n-word would be covered).  I don’t have much background in the law of limiting constructions; the opinion reads to me as coherent and plausible on this point even if I don’t find the specific project to be worth very much.

Sotomayor recognizes that these would be content-based limits, with possibly incidental effects on viewpoints, but that is ok when the content is sufficiently bad (e.g., a ban on fighting words). [More to the point, it can also be ok when there’s a government program involved.]  “Governments regulate vulgarity and profanity, for example, on city-owned buses and billboards, on registered vessels, and at school events.”  Cohen v. California was no help to Brunetti because that was a content-based speech prohibition.  It’s true that “without the profanity, the message is not quite the same,” but that just gets profanity into the loving arms of the First Amendment.  [Sotomayor’s excellent discussion of past precedent highlights why Tam didn’t involve viewpoint discrimination: it prohibited disparagement of anyone, rather than aiding a particular side in any debate, just as she explains that other restrictions of “mode” are content-based rather than viewpoint-based.]

Once we aren’t talking about viewpoint-based discrimination, it matters that registration is a discretionary government program.  Although four Justices in Tam [wrongly] refused to analogize to other government subsidy programs, we can usefully understand registration as a “beneficial, noncash governmental program,” or as something like a limited public forum.  Either way, “reasonable, viewpoint-neutral content discrimination is generally permissible under either framework.”  (Footnote: not every registration system would deserve the same treatment, “whether because not every such system invites expressive content like trademarks or simply because other forms of registration may not be so ancillary as to qualify solely as a ‘benefit.’”  I’d think this was aimed at copyright in particular, but the reference to “expressive” is unfortunate for that.)

What are the government interests making this content-based regulation reasonable?Apart from any interest in regulating commerce itself, the Government has an interest in not promoting certain kinds of speech, whether because such speech could be perceived as suggesting governmental favoritism or simply because the Government does not wish to involve itself with that kind of speech. While ‘there is no evidence that the public associates the contents of trademarks with the Federal Government,’ registration nevertheless entails Government involvement in promoting a particular mark. Registration requires the Government to publish the mark, as well as to take steps to combat international infringement. The Government has a reasonable interest in refraining from lending its ancillary support to marks that are obscene, vulgar, or profane.”

Sotomayor, less a technocrat than Breyer, would want courts and not just the PTO to police refusals for overextension of “scandalousness” on an as-applied basis. Sotomayor also identified some other provisions that could be next on the chopping block: §1052(b) (no flags or insignias); §1052(c) (no unapproved markers of deceased U. S. Presidents during the lives of their spouses).  But since the majority goes off on viewpoint discrimination, they’re likely safe from the Supreme Court’s holding here, if not from the Federal Circuit’s reasoning below.

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