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By Nick Mordowanec
Staff Writer
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U.S. Supreme Court Justice Amy Coney Barrett refuted an argument made by fellow conservative Justice Clarence Thomas as part of a unanimous ruling issued on Thursday.
Thomas delivered the majority of the opinion for the Court in Vidal v. Elster, a case stemming from petitioner Steve Elster wanting to register the phrase "TRUMP TOO SMALL" for use on T-shirts and other apparel starting in 2018 without first obtaining former President Donald Trump's consent.
The U.S. Patent and Trademark Office (PTO) rejected his application, citing how the Lanham Act prohibits the registration of trademarks of living persons without consent.
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The case reached the High Court after Elster was successful in getting the U.S. Court of Appeals for the Federal Circuit to unanimously reverse the PTO's decision on constitutional grounds. But the Supreme Court today rejected Elster's arguments that his First Amendment rights were being violated. Oral arguments occurred on November 1.
"Elster contends that this prohibition violates his First Amendment right to free speech. We hold that it does not," wrote Justice Thomas, joined by Justices Samuel Alito and Neil Gorsuch.
Thomas goes on to write that trademark law has always involved content-based distinctions rather than viewpoint-based distinctions, the latter of which he said does not apply in this case no matter "whether the use of [the] name is flattering, critical or neutral."
The longtime justice also mentions the application of "history and tradition" when considering the scope of the First Amendment, harkening back to previous centuries—writing in part: "American commerce became more national in character, and, perhaps because of this shift, Congress enacted the first federal trademark law in 1870. Although States retained their important role, 'Congress stepped in to provide a degree of national uniformity' for trademark protection."
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But Barrett in her concurring opinion retorted to Thomas' statements and his adherence to "history and tradition" in establishing the clause's constitutionality, arguing that the Court has not cleared the "historical analogue" bar it sets for itself and that historical counterexamples complicate the argument.
She writes in a footnote: "Justice Thomas mistakenly suggests that I present the federal trademark register as a limited public forum. That is not my position. Rather, I view the content-based nature of the limited public forum as analogous to the trademark registration system. Moreover, by characterizing my argument as a conclusory statement that the limited public forum framework is 'apt,' Justice Thomas ignores my reasons for drawing the analogy."
Barrett also wrote that "loosely related" trademark cases from the late-19th and early-20th centuries, when trademark law became more ubiquitous, do not establish a historical analogue for the names clause.
Liberal Justice Sonia Sotomayor in her own concurring opinion, writing: "I agree with Justice Barrett that, even if the majority's historical 'evidence were rock solid,' there is no good reason to believe that 'hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.'"
Sotomayor also mentioned Thomas' reasoning in her own footnote.
"According to Justice Thomas, I focus primarily on cash-subsidy and union-dues cases," she writes. "A closer look at this opinion and the cases that I cite will reveal that is not exactly true.
"As I mentioned in Brunetti, and both the Government and Justice Barrett assert in this case, limited public (or nonpublic) forum cases also constitute helpful analogies for arriving at the generally applicable principles that should apply to this kind of case."
Iancu v. Brunetti was another trademark case relating to the free speech amendment.
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