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The U.S. Supreme Court heard arguments regarding a California lawyer’s trademark application for the phrase “Trump too small.”
Soon after the hearing began, Justice Samuel Alito appeared to bail on the case, stating, “You don’t need my vote to win this case.”
During the 2016 presidential debate, Senator Marco Rubio made a crude remark about Donald Trump. In 2018, progressive activist and employment lawyer Steve Elster applied to register “Trump too small” with the trademark office. Elster started selling t-shirts with the phrase printed on the front and the words “Trump’s package is too small” printed on the reverse.
The trademark office denied his application, stating that Trump’s written consent would be necessary in accordance with the 1946 Lanham Act. The court heard arguments in the agency’s appeal of a lower court ruling that overturned its rejection of lawyer Elster’s trademark application on Wednesday.
Elster claimed that not being able to register a trademark that disparages a public figure violates his right to free speech. The justices of the Supreme Court, though, didn’t seem to believe that assertion, Newsweek reported.
The attorney for the United States Patent and Trademark Office stated shortly after the hearing started that the case is about a requirement for a “government benefit” or federal trademark registration rather than a free speech issue.
Justice Alito retorted that he would not vote merely because it is a requirement. “You don’t need my vote to win your case,” he remarked, “if I could not vote to sustain this without saying this is the attachment of a condition to a government benefit.” Perhaps you’ve simply concluded that Alito isn’t worth it in this situation.”
The National Law Journal’s Jimmy Hoover, a Supreme Court reporter, shared Alito’s response on X, formerly Twitter, highlighting the case’s difficulties.
“Alito says that’s a ‘dangerous’ road to go down, and Gorsuch hints USPTO can win based on long history of similar TM laws,” Hoover stated. “Alito lays his cards on the table, says he won’t vote to uphold the name-bar simply because it’s a condition on a gov’t benefit, and asks for another theory.”
Judge Neil Gorsuch, meanwhile, pointed out that trademarks referencing living individuals have long been prohibited, implying that there was no sense of a free speech issue at the time.
“Why not just look to the history?” he responded.
Judge Sonia Sotomayor questioned whether there was ever any restriction on free speech in the first place, pointing out that even if Elster is unable to trademark the phrase, there is nothing stopping him from selling the T-shirts.
The court is expected to uphold the U.S. Patent and Trademark Office’s decision to deny the application as oral arguments proceed.
Supreme Court Justice Bails on Case Right After It Startshttps://t.co/qlCVlUdzl8
— Newsweek (@Newsweek) November 2, 2023
In a separate case, the Supreme Court made headlines recently in a decision that many conservatives will likely applaud.
The nation’s highest court agreed to hear a case that will decide just how far the U.S. government can go in forcing social media companies to censor or suppress certain information.
The high court announced that it had issued a writ of certiorari in a lawsuit filed against the Biden administration by GOP attorneys general in Missouri and Louisiana in which the states seek to limit the federal government’s ability to pressure social media platforms like Facebook, X, and YouTube to stifle certain information without actually telling them to do so. Both states have argued that would amount to an obvious First Amendment violation against freedom of speech.
Louisiana Solicitor General Liz Murrill praised the high court’s decision in a Friday statement.
“We are pleased to learn that the U.S. Supreme Court will hear this case, giving us yet another opportunity to defend the people from this assault on our First Amendment rights,” Murrill said. “It brings us one step closer to reestablishing the protections guaranteed to us in the Constitution and under the First Amendment.
“We hope that the Supreme Court will agree that this gross abuse of power must stop and never happen again,” she added.
The Western Journal noted further:
The lawsuit, initially filed by Louisiana Attorney General Jeff Landry and Missouri Attorney General Eric Schmitt in May 2022, dealt with how the government put pressure on tech giants to censor certain information, particularly as it related to the COVID-19 pandemic — and the efficacy of and/or dangers potentially posed by mask-wearing, vaccines and other measures.
In a ruling on July 4, U.S. District Court Judge Terry Doughty fired the first shot in the legal volley on the case, issuing a decision that blocked a number of federal agencies — specifically, the Department of Health and Human Services, the National Institute of Allergy and Infectious Diseases, the Centers for Disease Control and Prevention, the U.S. Census Bureau, the FBI and the Department of Justice — from interacting with companies in a way that could be construed as “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
The Associated Press reported in September that the 5th U.S. Circuit Court of Appeals in New Orleans mostly ruled in favor of both states but “tossed out broader language in an order that a Louisiana-based federal judge had issued July 4 that effectively blocked multiple government agencies from contacting platforms like Facebook and X (formerly Twitter) to urge the removal of content.”
But while the Supreme Court agreed to hear the case, it also paused Doughty’s injunction, though some of the court’s conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — said they would have left the injunction in place.