The Supreme Court decided today in Iancu v. Brunetti that a federal statute barring “immoral or scandalous” trademarks violates the First Amendment. This means that the Patent and Trademark Office (PTO) cannot deny a trademark to Erik Brunetti’s FUCT clothing line simply because it is immoral or scandalous. A ban on immoral and scandalous trademarks impermissibly denies a government benefit based on viewpoint — the substance of ideas, not only the mode of expression. Justice Kagan’s majority opinion therefore did not need to answer the question of whether Congress could simply ban vulgar and sexually explicit trademarks, or trademarks involving racial epithets, as bans on the mode of expression instead of the underlying viewpoint. However, Justice Sotomayor, in a partial concurrence and partial dissent, feared that people will rush to register these types of marks before Congress amends its trademark statute.
Brunetti, although different in a number of dimensions, thus also calls to mind Harvard’s recent revocation of the acceptance of Parkland survivor and gun-rights activist Kyle Kashuv. Harvard, as a private university, is not subject to the First Amendment, but does have an ethical obligation as an academic institution to aid in the open pursuit of knowledge and truth, both free speech values. Two years ago, a blog I wrote — on Harvard’s rescinding of acceptances of 10 students who had participated in a private, offensive meme-sharing Facebook chat group — was cited in The Washington Post. I criticized Harvard for trying to police humor that occurs in private forums. Kashuv’s revocation is both more and less justified. Kashuv’s situation does illustrate why I believe Harvard is erring in its position on the increasingly relevant “paradox of tolerance.” The decision in Iancu v. Brunetti could be instructive here.