by Dennis Crouch
Thinking about Brunetti – Prof. Ned Snow has explained his view that the limit on registering scandalous marks should be upheld — so long as the term scandalous is limited to just marks communicating “sexually-explicit or vulgar content.” Ned Snow, Denying Trademark for Scandalous Speech, 51 UC Davis L. Rev. ___ (2018). As I suggested in a prior post, the “scandalous” nature of the mark would be largely viewpoint neutral and therefore more likely to pass through Supreme Court scrutiny. Snow goes on to explain why the government should be involved — think of the children!:
The apparent government interest is to protect the psychological wellbeing of minors, given that harmful effects follow from viewing pornography. And trademarks appear everywhere: they are openly displayed in stores, presented on billboards and road signs, delivered to the mailbox, embedded in movies and television, advertised throughout the internet (e.g., in the app store, in an unsuspecting email, on the Amazon website). Trademarks have become as pervasive as commerciality itself in the modern age. Consequently, scandalous marks can easily reach children. Withholding registration for them furthers the protection of children from psychological harm
In its brief, the USGov’t argues further that – even these days of pornography-rich internet, the Government continues to have a strong interest in excluding “lewd pictures, profanity, and sexually explicit imagery from non-public and limited public fora.”
A city government might decide, for instance, that graphic sexual imagery should not appear on advertisements on city buses. Or the federal government might impose similar restrictions on expression within a military cemetery. If (as the court of appeals concluded) the government has no legitimate interest in protecting the public from scandalous images, the constitutionality of such reasonable regulations might be called into doubt.
I’ll note here that both Snow and the Government focus on a traditional US view of what is Scandalous — foul language + nudity. These documents entirely skip over what I see as scandalous — i.e., actual scandals and corruption. If the government is going to use its moral authority to tamp out scandalous activity — that might be right place to start instead of FUCT clothing and DYKES ON BIKES.