Must Vulgar Words Be Our Trademark?

Limited government wins in a recent Supreme Court ruling, and morality can still win

By Rita Dunaway Published on July 10, 2019

Sometimes good court decisions produce results we don’t like. The Supreme Court’s recent ruling in Iancu v. Brunetti may be a good example for many. The Court struck down part of a federal law that forbids registration of trademarks that are “immoral” or “scandalous.” But the ruling doesn’t condemn us to a society where vulgar words are accepted and normalized. It just reminds us that the proper role of government institutions has its limits.

The case was brought by the maker of a clothing line with a vulgar name based on the f-word. The U.S. Patent and Trademark Office refused to register the name as a trademark, because the Lanham Act prohibits marks that contain “immoral” or “scandalous” matter.

It sounds like good policy. Thankfully, there are still plenty of Americans who would prefer not to have their senses assaulted by gutter talk each time they walk into the marketplace.

But there’s a problem. While we know that the First Amendment does not protect obscenity or “fighting words,” the trademark law paints its prohibition in much broader strokes. It breaks the cardinal rule of free speech by doing something referred to as “viewpoint discrimination.” Free speech is certainly not absolute, but its most basic precept is that the government may not forbid certain speech just because it doesn’t like the viewpoint being expressed.

The Court does not pretend to have the magical power to make the law’s words mean something other than what they really mean.

So the central question in this recent case was, does a ban on “immoral” or “scandalous” marks allow for the denial of trademarks that express a viewpoint the government doesn’t like? The answer has to be yes. And that is why the court struck down this part of the law.

What may be most interesting about this decision, though, is what it doesn’t do.

The Court Stays in its Lane

The Court does not pretend to have the magical power to make the law’s words mean something other than what they really mean. In a separate opinion, Chief Justice Roberts actually invites the majority to head down that path. He suggests that the Court should have merely adopted a “narrowing construction” whereby “scandalous” refers only to marks that are obscene, vulgar or profane.

Those who are disgusted by the very idea of a vulgar trademark for clothes may be tempted to side with the Chief to get the result they want. But remember, this is the same type of “interpreting” that Roberts used to uphold the individual mandate in the Affordable Care Act back in 2012. He said that the penalty Congress imposed on people who didn’t buy health insurance could “reasonably be characterized as a tax.”

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Whenever judges play fast and loose with the meaning of words in laws, they drift away from the rule of law. This time they may draft in a direction our side likes, and next time they may go the other way. But honoring the rule of law requires courts to apply the words according to what we know they mean — and to let the people change them as needed.

That is precisely what the Court did here. In fact, in a footnote to the majority opinion, Justice Kagan comes very near to suggesting that Congress could achieve its goals for the trademark law by rewriting it to prohibit marks that are “lewd, sexually explicit, or profane.”

When Each Institution Knows its Place, Society Flourishes

Thus, the Court has shown us quite nicely how proper courts behave in our constitutional republic. They apply laws as written, according to the real meaning of the words used by the lawmakers. They strike down laws that interfere with rights reserved to the people. They do this whether they like or dislike the policy that the law advances.

When courts behave this way, we are likely to get more decisions that are 6-3 (like this one), 7-2, 8-1, or even unanimous. Politics and ideology can take a back seat to more objective analyses.

When the courts behave this way, Congress will be forced to do its job by making laws on matters that were delegated to it by the Constitution.

And finally, when courts behave this way, the people just might get back to work, re-engaging in the public policy process and bringing social change through private means as well. Because let’s not forget: a foul trademark won’t matter much if no one buys the products.

We’ve heard it said that “there’s more than one way to skin a cat.” Well, there’s also more than one way to keep filth from being normalized in society. In this case, the Court is directing us to the right ways.


Rita Dunaway is a constitutional attorney, the author of Restoring America’s Soul: Advancing Timeless Conservative Principles in a Wayward Culture, and co-host of the weekly radio program, “Crossroads: Where Faith and Culture Meet.”

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