The Supreme Court of the United States (“SCOTUS”) added to the gaiety of nations in a ruling earlier this year, when it held by 6:3 that a clothing manufacturer could register its brandname FUCT (which stands for Friends U Can’t Trust) as a trademark: Iancu v Brunetti, June 24th 2019. The US Trademark Office relied on the Lanham Act, which prohibits the registration of “immoral” or “scandalous” trademarks. SCOTUS found that the Act infringed the First Amendment of the Constitution, which guarantees freedom of speech.
In summary, the Court’s reasons are as follows:
A divided Court agreed on two propositions. First, if a trademark registration bar is viewpoint based, it is unconstitutional. And second, the disparagement bar was viewpoint based.
The “immoral or scandalous” bar similarly discriminates on the basis of viewpoint and so collides with this Court’s First Amendment doctrine. Expressive material is “immoral” when it is “inconsistent with rectitude, purity, or good morals”; “wicked”; or “vicious.” So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts. And material is “scandalous” when it “giv[es] offense to the conscience or moral feelings”; “excite[s] reprobation”; or “call[s] out condemnation.” So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety.
The statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. This facial viewpoint bias in the law results in viewpoint-discriminatory application.
Of interest are the amicus briefs filed at court. One, from the Cato Institute, starts in a very critical vein:
Here we go again. Just two years ago, the Court unanimously told the Patent and Trademark Office (PTO) that it can’t punish trademarks just because some people find them “disparaging.” Matal v. Tam, 137 S. Ct. 1744, 1751 (2017). Not having learned its lesson, the PTO now insists it can punish trademarks just because some people find them “scandalous.”
It reminded the Court that moral panic over vulgar language is nothing new. In mediaeval times, religious oaths were considered to attack God. And it reminded the Court of a landmark moment in its own history:
In 1971, attorney Mel Nimmer argued before this Court in defense of the right to wear a jacket reading “Fuck the draft.” While preparing for his appearance, Nimmer “was convinced that he had to use that word, and not some euphemism, in his oral argument to make his point that its use could not be banned from all public discussion.” William S. Cohen, Looking Back at Cohen v. California, 34 U.C.L.A. L. Rev. 1595, 1599 (1987). Lo and behold, Nimmer got away with saying the forbidden word in his very first answer, and the foundations of the building did not crack.
This brief is submitted in the spirit of Nimmer, and with the same intent. Although the words we use are unusual for a Supreme Court brief, here they are necessary. Just because a brand like Fuct might not fit the PTO dress code doesn’t mean it has no place in American culture. The PTO’s efforts to discourage profanity in American life are profoundly misguided.
The danger in promoting a culture of bowdlerisation is that language is key to thought. When you ban words, you ban the ideas expressed by those words. Bowdler ruined Shakespeare in a misguided attempt to erase indecency – and more. As the Institute points out, “even those projects that begin by insisting they will target only offensive words will soon find that there are some ideas that cannot be expressed in an inoffensive way.” Thus, instead of committing suicide, Bowdler’s Ophelia dies in an unfortunate accident.
Swearing is part and parcel of normal speech. When James Joyce’s “Ulysses” was first published in the United States in 1922, it ran into difficulty because of the number of “old saxon words” but the court permitted publication on the ground of artistic merit and because Joyce was describing people who would “naturally and habitually” use such words.
The Institute cites research by Professor Timothy Jay, showing that the average contemporary English speaker uses between 80 to 90 swear words a day!
Indeed, the use of profanity in court testimony enhances witness credibility:
Profanity is thus a powerful rhetorical device. By establishing a less formal connection with a listener, it can make an orator or author seem both more trustworthy and more persuasive. See Eric Rassin & Simone van der Heijden, Appearing Credible? Swearing Helps!, 11 Psychology, Crime & Law No. 2, 177 (2005) (finding that testimony containing words such as “God damn it,” “shitty,” “fucking,” and “asshole” was perceived as more credible than otherwise identical testimony without swears); Cory Scherer & Brad Sagarin, Indecent Influence: The Positive Effects of Obscenity on Persuasion, 1 Social Influence 138 (2006).
Unsurprisingly, certain artists and brands deploy profanity as a means of identity. Take FCUK, the re-brand chosen by the British company French Connection in 1997. FCUK’s choice affronted Mr Justice Rattee (a judge said to live up to his name, every day and in every way), when it tried to stop another company using the word “fcuk” in 1999. Rattee J. called the ad campaign “tasteless and obnoxious”. But the buying public felt differently: in the first four years of the ad campaign, FCUK’s profits soared from £6.4 million to £19 million, while its share price rose from 300p. to 775p.
Official condemnation of what is sometimes termed “bad” or “vulgar” language typically conceals stereotypes and prejudices. “Vulgar language makes a class distinction—it is that spoken by ordinary, uneducated folk”: Meliisa Mohr, Holy Sh*t: A Brief History of Swearing 11 (2013). The linguist Tony McEnery argues, “[b]roadly speaking, the discourse of power excludes bad language, the discourse of the disempowered includes it.” Tony McEnery, Swearing in English: Bad Language, Purity and Power from 1586 to the Present 10 (2006).
Swearing is sometimes said to be a sign of lower intelligence or laziness. But, again, that is not true: “studies have shown that using profanity is positively correlated with both intellect and honesty.” Profanity, then, is an integral part of the human condition. “Profanity is a means to express and define ourselves, to cope, to joke, and to mock.”
More fundamentally, the Institute argues: “there cannot be one consensus standard of ‘scandalous language’ in a heterogeneous society…. What should be the standard for a government censor evaluating offensiveness? The standards of the middle class? Of the most educated?…. When the government tries to create one standard for a whole country, such a project inevitably involves telling a significant portion of that country that their standards are wrong and out of step with the official orthodox standards of the U.S. government.”
I have set the Institute’s case out at some length, as the arguments in this brief may well assist those defending clients charged with various public order offences or workplace disciplinary matters, as well as those acting for an array of creative industries and broadcasters.
By Barbara Hewson, barrister