Scandals and Corruption: Administration Should Focus its Attention on Actual Scandals

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.

9 thoughts on “Scandals and Corruption: Administration Should Focus its Attention on Actual Scandals

  1. 6

    The biggest “scandal” is that we have a criminal, a traitor, and a p@ th0 l0gical li @r for a President and a major political party that refuses to do anything about it because “power”. And somehow “experts” in the legal profession (e.g., the disgusting wingnert-worshipping hacks at SCR0TUSblog) can’t bring themselves to publicly admit this, or discuss its consequences for the country.

    I guess those D.C. c0 cktail parties must be really special. How horrible it would be to miss an invitation because you offended a Re pu k k ke.

  2. 5

    This gets stranger all the time.

    Trademarks aren’t protected “speech” or, if they are “speech”, they are the sort that is the least needing of protection. And that’s why the government should be permitted to regulate them by providing merely a rational basis for the regulation. That basis would fairly include “most people find scandalous marks upsetting or don’t want their children to be exposed to them.”

    Reminder to everyone again again: a restriction on what the government will register as a trademark isn’t a restriction on political expression or artistic expression or any other kind of expression. It’s a restriction on a type of mark that the government wishes to promote for the purpose of allowing consumers to identify the source of a commercial product for sale.

    Dennis: even these days of pronography-rich internet,

    Wait – there’s pron on the Internet now?

    1. 5.1

      Your arguments failed with Tam.

      I suggest that you go back and study.

    2. 5.2

      isn’t a restriction on… any other kind of expression.

      That’s plainly false.

      It’s a restriction on a type of mark that the government wishes to promote

      That’s also plainly false.

      Come on Malcolm, at least get IN the ballpark.

  3. 4

    “The apparent government interest is to protect the psychological wellbeing of minors, given that harmful effects follow from viewing pornography.”

    I thought we got rid of near all restrictions on pron decades ago in line with the new morality adopted?

  4. 3

    “Prof. Ned Snow”

    A bastard of the North?

  5. 2

    If the government focused on marks/names associated with actual scandals and corruption, they would have would have to ban the public selling of those “FBI” shirts and hats in DC.

    1. 2.1

      There appears to be some confusion between registration and actual use (both by KB and the authors of the article).

      Registration (or lack thereof) is NOT the same as prohibiting or controlling use.

      IF your “driver” is actually to engage in controlled usage, you need a different law (or set of laws).

  6. 1

    If one is donning the mantle of “morality,” then one should not be limited to explicit or graphic displays.

    even these days of p0r nagraphy -rich internet, ” is (quite arguably) NOT enough and ALL use of “s e x sells” should be banned.

    Without disparagement, is this not the very reason for burqas?

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