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.

In Brunetti, Justice Kagan’s majority opinion held that the ban on immoral and scandalous trademarks was a viewpoint-based restriction on speech, because the ban denied trademark registration to material that is shocking to our sense of morality and propriety.  The government may not deny a benefit – such as a trademark – to speech based on the viewpoints expressed, even if it may engage in viewpoint discrimination when subsidizing its own speech.  The fact that the immoral and scandalous ban was viewpoint-based was evident by how the PTO denied trademarks to “Bong Hits 4 Jesus” and “Baby Al Qaeda” but allowed trademarks for drug abuse prevention organizations and religious groups.

The Court did not need to decide if the trademark system generally amounts to the denial of a benefit – where viewpoint discrimination is not permitted but the government can restrict the content of messages, such as the subject matter or the mode of expression – or a restriction on pure speech – where the government may not even discriminate on the basis of content.  In a pure speech restriction, the government cannot simply ban the F word.  (Hence, the famous “F the Draft” case.)  However, perhaps Congress could deny trademarks, as a government benefit and not a blanket restriction on speech, to vulgar terms.  The majority of the Supreme Court did not need to decide whether the trademark system is the denial of a government benefit or a restriction on pure speech, or whether Congress could deny trademarks to vulgar trademarks, because the “immoral and scandalous” ban amounts to viewpoint discrimination, the chief “poison” of free speech (noted by Justice Alito in concurrence), which is unconstitutional regardless of the answer to these questions.

Several Justices, however, would have narrowed the construction of the term “scandalous” to mean simply vulgar, profane, or sexually explicit.  This would have regulated speech only based on its mode of expression, not the ideas conveyed.  With this narrowing constitution, the ban on “scandalous” trademarks would have constituted content-based discrimination, perhaps acceptable in a government-benefit system like trademarks, and not viewpoint-based discrimination.  (The ban on “immoral” trademarks would still be impermissible viewpoint-based discrimination.)  Justice Kagan’s majority declined to adopt this narrowing construction, however, because “the category of scandalous marks . . .includes both marks that offend by the  ideas they convey  and marks that offend by their mode of expression.”  Justice Kagan refused to rewrite the statute in order to save it.

Erik Brunetti thus wins his facial challenge to the statute that the PTO used to deny his trademark, even though his brand is “the equivalent of [the] past participle form of a well-known  word of profanity,” and uses sexually explicit, nihilistic, and perhaps misogynistic imagery.  The government cannot determine which ideas are too shocking to our sense of morality to be permitted trademark status, even if trademarks are a government benefit.

In contrast to the ban on scandalous or immoral trademarks, Kyle Kashuv’s Harvard acceptance was perhaps revoked because of the mode of his expression, not because of the ideas conveyed, although my guess is that Harvard would have revoked his acceptance if he had expressed certain ideas even without the racial epithets.   Kyle Kashuv became a popular social media commentator and conservative activist when his contrarian stances demonstrated that not all Parkland survivors share the same views on gun control.  After he earned a spot at Harvard, others revealed private conversations that occurred two years ago in which he used a racial epithet that, even at 16, he should never have used.  Kashuv apologized, noted his use of the word was just to be edgy, and claimed significant growth in his perspective after the Parkland shootings.

Harvard refuses to re-admit Kashuv, and the Constitution has no bearing on its decision.  But, an analogy to Brunetti can illustrate Harvard’s shortcomings.  Harvard, just like the federal trademark system, is denying a benefit based on private speech, which must be separated from Harvard’s own views.  Just as the government doesn’t speak when it trademarks both Pepsi and Coca Cola, Kashuv doesn’t speak for Harvard.  If Harvard is acting based on a fear that its admissions decisions reflect on its own views, this is a dangerous precedent to set.  Harvard should be educating a diversity of students, with a variety of views, and should remain out of the business of policing private speech that occurs among individuals in private settings.

Harvard cited the fact that the maturity and moral character of its applicants matter, but this seems more appropriate for conduct than for private conversations.  Does Harvard truly expect 16 year olds to be mature in private?  I hope not.  The culture of revealing personal conversations, especially of children, is concerning on a number of levels and is surely chilling to speech—although it will not be a loss if racial epithets are chilled.

In some ways, Kashuv has a better case for re-instatement than the 10 students whose acceptances were revoked two years ago.  Kashuv was participating in private conversations and texts completely unaffiliated with Harvard, which occurred two years ago.  However, Kashuv is also more of a public figure, and his comments may be more of a representation of his actual views, as opposed to obviously shocking and edgy memes shared in a Facebook group.

But Kashuv has apologized and grown, and there appear to be no actual risks to student safety.  Harvard should show some tolerance for intolerance, choosing its role as educator over its role as ideological commentator or social justice facilitator.  Welcome Kashuv into the community, teach him to reason rigorously, teach him to question, teach him to respect others, teach him to engage civilly.  Instead, Harvard is perhaps swaying to public outcry and further igniting the culture wars, and for that, I fear, we are increasingly FUCT.