Legal Docket: A profane participle

NICK EICHER, HOST: It’s Monday morning and a fresh work week for The World and Everything in It. Today is the 22nd of April, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

Well, we’re in the final stretch for this term’s oral arguments at the Supreme Court. This week and next wraps them all up and you’ll hear something about each of them here on Legal Docket by end of May.

Today, two cases.

And the first one asks a provocative question: What is scandalous? And who decides what is scandalous?

The Bible offers lots of guidance here: Ephesians 4 admonishes believers not to let corrupting talk come out of our mouths, and that Greek word for corrupting is the same one the Bible uses to describe rotten fruit or putrid fish. Proverbs 15 says a perverse tongue breaks the spirit.

Over and over, we see that civility is a delicate thing to be cultivated, and that a little bit of vulgarity goes a long way.

But the question before the Supreme Court is how far the United States Patent and Trademark Office can go to hold back cultural vulgarity. Specifically, can this federal agency refuse to register a trademark for the homonym of a vulgar word?

A homonym. That is, two words with the same pronunciation but different meanings.

EICHER: The Supreme Court clipped the wings of the patent and trademark office two years ago, when a group of Asian American musicians brought a challenge. They claimed the government had no right to deny a trademark registration for their band they’d named “The Slants.”

A federal law barred registration of trademarks that are ethnically disparaging, and on that basis the office refused to trademark the band name.

The musicians sued, and argued that denial violated their First Amendment right to free speech.

A unanimous Supreme Court agreed, although the justices had different reasons and no single theory of law gained a majority. So there’s no neat and tidy rule to govern today’s case.

The one thing they agreed on was that the patent and trademark office had engaged in viewpoint discrimination. And that is unconstitutional.

REICHARD: But in this case, it’s another part of the same law at issue.

This isn’t about viewpoint. It’s about the provision of law banning “immoral” or “scandalous trademarks.”

A man in Los Angeles named Erik Brunetti has a line of clothing that caters to what’s been described as a “skater” mentality: big pants and caps that embody countercultural ideas. The name of that clothing line is the homonym I mentioned a moment ago. It’s a homonym for a word you’re more likely to hear in an R-rated film than on a Christian  podcast.

So when Brunetti wanted to trademark the name of his clothing line, the patent office told him “no.”

During oral argument, the problem immediately arose that the  patent office makes inconsistent decisions.

Justice Neil Gorsuch laid that part out.

GORSUCH: It’s allowed a lot of marks with these words and it’s refused a lot of marks without these words. I could not myself see a rational line through that chart at the end of the red brief. And, how is a reasonable citizen supposed to know?

The Patent Office defines scandalous, in part, as “shocking the sense of truth, decency or propriety; disgraceful; giving offense to the conscience or moral feelings.” Its lawyers rely on news, blogs, and the dictionary to understand how the public thinks about a particular word.

Representing the patent office was Deputy Solicitor General Malcolm Stewart. He argued the patent office has the right to refuse to register a trademark. Context matters, he argued, and he began to spell out some of those vulgarities.

But Justice Gorsuch intervened.

GORSUCH: I don’t want to. I don’t want to go through the examples. I really don’t want to do that. [Laughter]

The arguments had to dance around the word at the center of this dispute, though, and Stewart found a lawyerly way to do it.

STEWART: This mark would be perceived by a substantial segment of the public as the equivalent of the profane past participle form of a well-known word of profanity. And perhaps the paradigmatic word of profanity in our language.

On the other side was lawyer John Sommer. He argued the law is unconstitutional on its face. That just means there’s no way to interpret the law within the bounds of the Constitution. It just has to be invalidated.

So Sommer is, metaphorically, swinging for the fences here.

His problem is with the ban on trademarks the law defines as those that a “substantial composite of the general public would find … shocking or offensive.”

Remember the definition, because it’ll come up again: if a “substantial composite of the general public would find … shocking or offensive” a trademarked term, then it cannot be trademarked. It’s either unconstitutional or it’s not. John Sommer says it is.

SOMMER: And the provision is so incredibly overbroad, because if it’s taken at its word … on its face, Steak ’n Shake can’t be registered because … —a substantial portion of Americans believe that eating beef is immoral. And so now that’s … invalid, that registration.

Malcolm Stewart says the law is entirely workable. Again, he’s the attorney arguing for the Patent Office—and he had a warning for the court about the implications of striking down the law. Listen to this exchange with Chief Justice John Roberts.

STEWART: And we’re not just talking about words; we’re also talking about images, that trademarks can include images as well as words—and if the scandalous marks provision were struck down, then applicants would be free to obtain registration of sexually explicit images.

ROBERTS: Okay. So, if you lose, then you would not be able to restrict trademarks on the ground that they’re obscene?

STEWART: I think that’s correct.

Now, Brunetti’s clothing line has been a going concern since 1990. He didn’t attempt to register the trademark until 20 years later.

And if community standards for what’s acceptable language have changed, this case proves it.

Justice Ruth Bader Ginsburg acknowledged that very thing.

GINSBURG: How is that determined, that a substantial composite of the general public would find … the mark shocking or offensive? I mean … considering what’s involved in this case, if you were to take a … composite of, say, 20-year-olds, do you think that that answer would be they would find it shocking?

STEWART: I think there are certainly some segments of society that are more likely to find particular marks shocking than others.

Sommer, again in favor of trademarking the word in question, argued that when the government decides what is or is not offensive, that’s viewpoint discrimination. That’s unconstitutional.

Justice Samuel Alito didn’t sound convinced at all, and he seemed particularly irritated by the homonym, a barely disguised attempt to avoid the actually offensive word.

Listen to this exchange with Sommer.

ALITO: The government is not saying, you can’t use this phrase, this word. We just won’t register it.

SOMMER: Well, … basically, the question seems to be is can we prohibit the seven dirty words. You know, if the government had a list of seven dirty words, would that be constitutional? And the answer is it would not be, for two reasons. First, because you have seen in the briefs some marks that have the F word and racism and cancer. Those clearly express viewpoints. And the second thing is, even if you had a list of five words, that wouldn’t preclude Mr. Brunetti’s mark because it isn’t exactly one of the seven dirty words.

ALITO: Oh, come on. You know, come on.

SOMMER: Well, I agree with—

ALITO: Be serious. We know what—you know, what he’s trying to say.

Sommer went back to utter inconsistencies of the trademark office where one word was registered and another wasn’t and the only difference was two letters switched. So things got in the weeds quickly.

Thomas Jefferson once wrote that it “is in the manners and spirit of a people which preserve a republic in vigour … degeneracy in these is a canker which soon eats into the heart of its laws and Constitution.”

Justice Stephen Breyer seemed to get that in this exchange with Sommer, who kept arguing this is about viewpoint discrimination.

Chief Justice Roberts summed up his take on the whole thing at the end.

BREYER: No, I don’t agree with it’s viewpoint. I think that very often the word involved in your case and the racial slur is not viewpoint. It is used to insult somebody, rather like fighting words, or it’s used to call attention to yourself. That’s the purpose of the slur. That isn’t viewpoint. Fighting words isn’t viewpoint. Or,  if it is, it’s overcome.

SOMMER: Well, Mr. Brunetti’s viewpoint is, as already pointed out, I can be offensive, I don’t have to obey the authority. And that’s viewpoint.

ROBERTS: I don’t want to distract you, but that’s completely circular.

The fallacy of the circular argument. My viewpoint is that I can be offensive, so I’m registering an offensive term to make my viewpoint known. So denying my registration is discriminating against my viewpoint. Starting with an assumption that what you are trying to prove is already true.

Still, circular or not, the justices are faced with sorting out many different threads.

Is this word in question viewpoint or insult?

Does registration imply government endorsement?

Will ruling in favor of trademarking the word in question open commercial space to profanity where children can see it?  

This was what’s called a “hot bench,” with thoughtful questions from both sides of the ideological aisle seeking to articulate a bright line.

Before we leave this one, I’ll add one more thing:

The briefs in this case were really interesting, and one in particular that held my attention was the one from The Cato Institute. Ilya Shapiro, who wrote the brief, cited a funny story about a socialist in the 1800s who predicted socialist utopia would wipe out the need for cursing. Now that one kept me chuckling.

If you want to read it, visit, look for the transcript of today’s Legal Docket, and I’ll have a link to it.

This last case (Emulex Corp, et al v Varjabedian, et al) is less than riveting. I’ll keep it short.

Emulex Corporation sells computer parts.  During its merger with Avago Technologies Wireless Manufacturing, Avago offered to pay a 26% higher price for the value of Emulex stock than its value the day before the merger was announced.

A third company hired by Emulex determined that was a fair price. But some of Emulex’ shareholders were unhappy with those terms and sued both companies for violating securities laws.

The basic question came down to the word “scienter.” That means intent or knowledge of wrongdoing on the part of the company.

What I found interesting was this clip from the lawyer for the shareholders, Daniel Geyser.

Any first-year law student could identify many tools in the legal toolbox he used to bolster his side of the argument.

See if you can:

GEYSER: Although we submit only one question is properly presented, this entire dispute can be resolved looking to this Court’s usual tools of statutory construction and the text, context, purpose, and history… . As for the culpability standard, scienter is not required under the plain words that Congress chose for this statute.

Could you pick out some of those legal tools?

The right question.

Plain language.


Purpose and history.

Still, the justices differed on which tools to use to interpret the law. Justice Kagan even suggested tossing that old toolbox and just “be sensible” in interpretation.

No telling how that’ll turn out.

And that’s this week’s Legal Docket.

(AP Photo/Susan Walsh) A March 15, 2019 view of the Supreme Court in Washington.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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