The Supreme Court’s June 24 decision Iancu v. Brunetti centers around a case that’s hard to describe, but not due to its legal complexity. Instead, this litigation is difficult to discuss because it involves language we usually try to avoid in polite company. The petitioner was Erik Brunetti, the founder of a clothing line. He named his brand using a combination of letters that, when read together, sound just like the past tense of the F-word.
Brunetti sought trademark protection for his company name with the U.S. Patent and Trademark Office, but it denied the patent. It did so under a provision of the Lanham Act that stipulates no trademarks shall be granted that contain “immoral” or “scandalous” matter.
In Iancu, the Supreme Court decided that this part of the Lanham Act violated the First Amendment’s protections for free speech. As far as content is concerned, the majority opinion said the First Amendment barred any governmental restrictions, declaring that “government may not discriminate against speech based on the ideas or opinions it conveys.”
The part of the Lanham Act in question, the court concluded, did just so. Justice Elena Kagan noted a number of examples of decisions to grant and deny trademarks that appeared content-based. For instance, accepted trademarks often involved statements opposing drugs, but many rejected applications explicitly or implicitly approved of their use. Kagan argued that the difference here boiled down to agency approval or disapproval of certain drugs. Doing so “distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them.” This constituted an unconstitutional form of viewpoint discrimination, the court decided.
This point makes sense if we keep in mind Justice Samuel Alito’s warning in his concurring opinion. He argued that “our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends.” Alito is exactly right.
To distinguish between free speech and moral relativism, we must understand the role speech plays in our lives. Aristotle described the capacity for speech as the defining quality of humanity. Speech, which he described as the use of reason in communication, comprised the means by which we discuss and decide questions of justice and the common good. To deny the role of speech in these questions denied our humanity, leaving coercion and violence as the sole remaining means of decision-making.
Moreover, speech played an even greater role under representative government. We live in a political community where legitimate rule stems from the consent of the governed. But how do the people form and express our opinions? Ultimately by voting. Yet voting is only the end point of a process of deliberation about what is best for society, and speech is essential to that process and thus to legitimate governance itself. Alito’s concurring opinion echoed these points, asserting that “[v]iewpoint discrimination is poison to a free society.”
At the same time, the court left open the possibility that government could place some restrictions on how a person can communicate ideas.
Our laws can recognize and enforce basic rules of civility and decorum. Far from violating free speech, such rules respect and enhance it, for speech itself assumes a respect between the speaker and the audience. It assumes, finally, that we should govern where possible by persuasion, not violence.
Furthermore, Alito’s concurring opinion added another category for restriction — when words fail to communicate any idea at all. Alito noted that Brunetti’s word choice “as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary.” This point, too, kept the First Amendment in line with its fundamental purpose of protecting the free expression of ideas for the purpose of peaceful self-government. If words or actions possessed no articulation of ideas, then they do not fall under the First Amendment.
Alito’s opinion thus noted that declaring the Lanham Act void did not necessarily vindicate the trademark sought in this case. A more narrow law could potentially deny the trademark in question as “not needed to express any idea” and remain constitutional. It could recognize that, far from a benefit to social discourse, “[t]he registration of such marks serves only to further coarsen our popular culture.” The laws could both protect free speech and a moral order.
Thus, the Iancu decision marked a victory for truly free speech. It rightly protected the robust exchange of ideas necessary to our humanity and to free government. But it left more to be done to cultivate the best, moral conditions for such exchanges, conditions grounded in civility and decorum. However, the court rightly left that vindication where it belongs — in the halls of Congress.
Adam Carrington is an assistant professor of politics at Hillsdale College.
