Government: We Can Still Regulate Morality

by Dennis Crouch

Morality judgments have been a core governmental activity for millennia.  However, when it comes to limiting speech – morality is unlikely to be a sufficient justification to overcome today’s expansive Free Speech principles.

The Lanham Act requires the USPTO to bar registration for marks that are either “immoral” or “scandalous.”  15 U.S.C. 1052(a).  A separate portion of the provision prohibits registration of marks that “may disparage . . . persons” — but the Supreme Court found that portion uncontitutional in Matal v. Tam, 582 U.S. ___ (2017). In Brunetti, the Federal Circuit expanded Tam by holding that the prohibition on registering “immoral” or “scandalous” marks is also an unconstitutional.  The court suggested that the government could draw some lines – such as barring obscene marks — but those dilenations are the province of Congress.

In Brunetti’s particular case, his admittedly vulgar mark FUCT was originally refused registration on scandalous grounds. On appeal, however, the Federal Circuit reversed.

Now, the US Government has petitioned the Supreme Court for Writ of Certiorari — arguing that:

Under the proper analysis, the First Amendment does not prohibit Congress from making vulgar terms and graphic sexual images ineligible for federal trademark registration.

[Read the petition: Brunetti (Pet)]. The petition asks one straightforward question:

Whether Section 1052(a)’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the Free Speech Clause of the First Amendment.

In some ways, the case here looks to be open-and-shut — since the Supreme Court just held in 2017 that disparaging limit is unconstitutional. However, a disparaging mark is – by definition – directed toward a particular viewpoint and therefore more suspect than a mark that is simply vulgar.   In addition, one problem with Tam is that there was no majority opinion explaining the court’s reasoning. On this second point, the petition explains:

Although this court recently concluded in Matal v. Tam, 137 S.Ct. 1744 (2017), that a different provision of Section 1052(a) was facially unconstitutional, no rationale garnered the assent of a majority of the Court, and neither the of the lead opinions in Tam endorsed the approach that the court of appeals adopted here.

The petition here was a joint submission by the US Solicitor General and the USPTO, including acting solicitor Joseph Matal who was acting director at the time of the Tam decision.

= = = =

Notes: Prior to Brunetti, courts have largely enforced the “immoral” and “scandalous” limitations — treating the two as a single category of prohibition.  My favorite case is In re Fox, 702 F.3d 633 (Fed. Cir. 2012) (finding the mark for a rooster-shaped lollipop scandalous since it was intended to refer to a “cock sucker”).  Scandalous marks, include those “shocking to the sense of propriety, offensive to the conscience or moral feelings or calling out for condemnation.” McGinley. 

18 thoughts on “Government: We Can Still Regulate Morality

  1. 5

    Are USPTO fees used to pay for the preparation of the brief?

  2. 4

    How can the current government make *any* claims of morality?

  3. 3

    There has always been some limit on free speech. The most famous from a Sup. Ct. justice is that you can be prohibited or punished for yelling “fire” in a crowded theater. That of course does not need to fall under an ambiguous term like “morality.”

    1. 3.1

      I recommend listening to the “Make No Law” podcast about yelling fire in a theater ((1) it’s a useless phrase and (2) the case it comes from is odious).

  4. 2

    How is the Crouch chicken coop doing these days?

    1. 2.1

      LOL

      Good question. Those hens must be layin’ by now.

  5. 1

    Whose” version of “morality” is to be enforced?

    “Old white men” version?

    “Young Liberal Left” version?

    Or is it “ok” to pretend that there is only one version that is “universal” AND is the one being decided to be enforced by the administrative agency (and/or the courts)? After all, one of the (successful) planks of the Tam case went beyond the “facially invalid” and touched upon the “invalid as applied.”

    Granted, “facially invalid” is the more powerful grounds, but that does not dismiss the “as applied” factor and the related critical thinking as to which (and whose) standard is chosen as THE “moral” standard.

    And I would also add that the Far Liberal Left will want to be extra careful here, given that for some social aspects, the different versions of “moral” do not accept ALL “modern” aspects (and in anticipation of Malcolm’s whining, my comments are NOT choosing ANY one particular group’s view of “moral,” and is merely stressing the fact that groups HAVE differing and conflicting views of the topic).

    1. 1.1

      the Far Liberal Left will want to be extra careful here

      LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

      And everybody knows that the Far Liberal Left always pays attention to reactionary glibertarian types. All the best insights come from there!

    2. 1.2

      “Whose” version of “morality” is to be enforced?

      Pretty sure that in a democracy the correct answer is: the “morality” of the majority.

      There’s one big assumption there, of course.

      1. 1.2.1

        MORE THAN pretty sure that the “morality” of the majority is NOT the correct answer.

        Per se and as such – there are reasons why we have inviolable principles and specified rights that require more than a simple majority vote to change.

        Are you really an attorney?

        1. 1.2.1.1

          there are reasons why we have inviolable principles and specified rights

          And there are times when those “inviolable” (LOL) principles are violated because … majority decides it’s reasonable to do so because … reasons ….

          It’s a democracy, after all.

          Also, the last time I checked there is nothing “specified” in the Constitution about an “inviolable” right to any trademark that you want.

          Glibertarians are truly the strangest people on the planet. Also reliably the st 00 pitest and the least able to assess the limits of their weak intellects.

          1. 1.2.1.1.1

            Done kicking up dust?

            Put down your Accuse Others and maybe say something on point, eh?

      2. 1.2.2

        MORE THAN pretty sure that the “morality” of the majority is NOT the correct answer.

        Per se and as such – there are reasons why we have inviolable principles and specified rights that require more than a simple majority vote to change.

        Are you really an attorney?

    3. 1.3

      ““Whose” version of “morality” is to be enforced?

      “Old white men” version?

      “Young Liberal Left” version?”

      muahmuhawhawhaw anon is catching on.

      ““Old white men” version?”

      Can’t be that one because old white men are all known to be ra cist, se xist, homo phonebic, etc. in their morality so we cannot enforce their morality! Because because because that isn’t OUR morality!

      “Morality judgments have been a core governmental activity for millennia.”

      Though not that much in Merica since certain elements took over the country’s “herp morality” and “herp values”. After that happened we no longer have a unified morality among the populace. We diverse nao is more than a meme.

      Pron lawls = gone
      “hate speech” lawls = enacted
      gay lawls = gone/unenforced
      sex ed lawls = enacted
      lawls against adultery = unenforced/gone
      lawls for ez divorce = enacted
      lawls against drugs = going/unenforced
      lawls fer daddy gubmit supporting single moms = enacted

      ^muh new “moral” paradigm. lol. Academia, what a drug for a nation.

      I should actually add that as mind controlled as I myself am I’m not even all that against that switching of lawls, but even I as re ta rded as I am, can tell that it’s backwards from anything even somewhat closely regarding “morality”. In such a situation for a nation all laws based on morals are subject to being practically arbitrary determinations by those in power. The whole country effectively being ruled by a kangaroo congress/lawmaking body and having hold overs from an era vaguely moral.

      1. 1.3.1

        It’s almost as if the government should respect people’s individual freedoms and not legislate things like gentlemen’s special interest media, bedroom activities, and use of one’s body. I’m open to rational arguments based on reason, but not to “because an old book says so” arguments. Your view of government morality is just a license to the government (usually individual agents of the government who wield their power with discretion) to oppress those it deems to be the “other.”

        1. 1.3.1.1

          When you say “old book” — are you referring to the U.S. Constitution?

          1. 1.3.1.1.1

            It was a reference to the Bible or any older religious text in general.

            I think there can be reasoned and rational arguments on why we would want to keep certain things out of the literal public square. I don’t think the loaded term “morality” is the proper lens to make those judgments because what is moral is often dictated by those in power and wielded like a sword against the other. Basically, the statute needs to be rewritten to remove some of the discretionary function of the examiner (and the USPTO in general) (maybe the correct balance between discretion and zero-tolerance only exists in Utopian fiction).

        2. 1.3.1.2

          I would think not the Constitution, but rather, the font of the even older Judeo-Christian codes of morality (i.e., the Bible [catholic and protestant permutations], with inclusion perhaps of the Tanakh plus [e.g., Torah and Talmud], which, if expanded into the Koran, would basically provide nearly all of the Western World’s traditional morality basis).

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