Iancu v. Brunetti
139 S. Ct. 2294, 204 L. Ed. 2d 714 (2019)
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Rule of Law:
A provision of federal trademark law that prohibits the registration of marks that are 'immoral' or 'scandalous' constitutes viewpoint discrimination in violation of the First Amendment's Free Speech Clause.
Facts:
- Erik Brunetti is an artist and entrepreneur who founded a clothing line.
- Brunetti chose the brand name and trademark 'FUCT' for his clothing line.
- While Brunetti states the mark is pronounced as the individual letters F-U-C-T, it is phonetically identical to the past tense of a common profane word.
- Brunetti sought to obtain federal trademark registration for his 'FUCT' mark from the U.S. Patent and Trademark Office (PTO).
Procedural Posture:
- A U.S. Patent and Trademark Office (PTO) examining attorney refused Erik Brunetti's application to register the mark 'FUCT', finding it unregistrable under the Lanham Act's bar on 'immoral or scandalous' matter.
- Brunetti appealed to the PTO's Trademark Trial and Appeal Board (TTAB), which affirmed the examining attorney's refusal.
- Brunetti then appealed to the U.S. Court of Appeals for the Federal Circuit, bringing a facial challenge to the constitutionality of the 'immoral or scandalous' provision.
- The Court of Appeals for the Federal Circuit, as the intermediate appellate court, held that the provision violated the First Amendment.
- The Director of the PTO, Andrei Iancu, petitioned the U.S. Supreme Court, the highest court, for a writ of certiorari, which the Court granted.
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Issue:
Does the Lanham Act's prohibition on the federal registration of 'immoral[] or scandalous' trademarks violate the Free Speech Clause of the First Amendment?
Opinions:
Majority - Justice Kagan
Yes, the Lanham Act's prohibition on registering 'immoral or scandalous' trademarks violates the First Amendment. The provision discriminates on the basis of viewpoint by disfavoring ideas that are out of step with conventional moral standards. Relying on the precedent of Matal v. Tam, which struck down the Act's 'disparagement' clause, the Court found this provision similarly unconstitutional because it permits registration of marks that champion social norms of morality and decency but denies registration to marks that express hostile or denigrating views toward those same norms. The Court rejected the government's argument to narrow the statute's meaning to only lewd, sexually explicit, or profane marks, stating that the Court cannot rewrite a statute whose plain language is unambiguously broad and covers a wide range of ideas, not just modes of expression. Because the bar is substantially overbroad and discriminates against ideas that offend, it is facially unconstitutional.
Concurring - Justice Alito
Yes. Justice Alito agreed fully with the majority that the provision constitutes viewpoint discrimination and cannot be salvaged by judicial rewriting. He wrote separately to emphasize that viewpoint discrimination is 'poison to a free society' and that the Court's decision is not based on moral relativism but on the principle that such laws can be easily exploited. He suggested that Congress could adopt a more narrowly focused statute to preclude the registration of vulgar terms that do not express ideas, and that Brunetti's mark could be denied registration under such a hypothetical statute.
Concurring-in-part-and-dissenting-in-part - Chief Justice Roberts
Yes and No. Chief Justice Roberts agreed with the majority that the 'immoral' portion of the provision is unconstitutional viewpoint discrimination and cannot be narrowly construed. However, he argued that the 'scandalous' portion is susceptible to a narrowing construction that would limit it to obscene, vulgar, or profane modes of expression, which would be constitutional. Under this reading, the government has a valid interest in not associating itself with such marks, and refusing registration does not restrict speech but merely denies additional government benefits.
Concurring-in-part-and-dissenting-in-part - Justice Breyer
Yes and No. Justice Breyer, largely agreeing with Justice Sotomayor, argued for a more flexible, proportionality-based approach rather than relying on rigid First Amendment categories. He asserted that the 'scandalous' provision could be narrowly construed to apply only to highly vulgar or obscene words. Under a balancing analysis, he concluded that the minimal harm to speech interests from denying registration for such marks is outweighed by the government's legitimate interests in not promoting vulgarity, protecting children, and preventing public disruption.
Concurring-in-part-and-dissenting-in-part - Justice Sotomayor
Yes and No. Justice Sotomayor agreed that the 'immoral' bar is unconstitutional but argued that the term 'scandalous' should be given a narrowing construction to save it. She contended that 'scandalous' could be interpreted to apply only to marks that are obscene, profane, or vulgar, making it a permissible, viewpoint-neutral regulation of the mode of expression, not the content of the idea. In the context of a government benefit program like trademark registration, such a reasonable, viewpoint-neutral restriction would be constitutional.
Analysis:
This decision solidifies the principle from Matal v. Tam, confirming that the government cannot deny federal trademark registration based on the viewpoint a mark expresses. It establishes that statutory restrictions based on offensiveness, morality, or scandal are inherently viewpoint-based and therefore facially unconstitutional under the First Amendment. By refusing to adopt a narrowing construction, the Court sent a clear signal that it will not judicially rewrite broad statutes to save them from First Amendment challenges, placing the burden on Congress to legislate with greater precision. The ruling effectively opens the federal trademark register to marks containing profanity, vulgarity, and other language previously deemed unregistrable.
