Last week’s Supreme Court decision was a victory for anyone who doesn’t want some government agency in charge of morality.
I’m raising my hand as I write this. I already have an invisible friend who warns me when I’m about to be immoral and I don’t need the government looking over his shoulder.
If you missed it, the nation’s highest court ruled in favor of a Southern California guy who was denied a trademark for his clothing company because his company is called “FUCT.”
I know…that sounds a lot like the other kind of “FUCT,” a term we hear during elections, at tax time and maybe during a nuclear attack, generally prefaced with a “We’re,” or an “I’m” or a “They are.”
It’s why the federal agency in charge of trademarks rejected his. Someone deep in the bowels of the trademark building read the request and said, “Oh…hell no!”, or maybe something like…”Are you fu_king kidding me?”
The urban clothing designer could have given up and maybe changed the name of his company to something less “F-word” sounding (WACT, or DUCT), but he didn’t. He’d watched enough TV and seen enough political debates and senate confirmations to know that morality has changed a lot since the ban on trademarking “immoral” or “scandalous” words was enacted in 1905. Most of the things we do for fun today would have been illegal in 1905.
There are annual nude bicycle rides through Portland and Seattle that I’m pretty sure would have been frowned upon in 1905. In fact…I’m frowning as I write this. There are a lot of things you should never do naked and high on the list is a bike ride.
In writing the dissension, Justice Elena Kagen wrote, “There are a great many immoral and scandalous ideas in the world today (even more than there are swear words). It, therefore, violates the First Amendment.”
She didn’t give examples of other immoral or scandalous ideas in the world today, but you can probably see most of them if you turn on CNN or Fox News today.
The court addressed the real issue at the end of the decision.
“Our decision is not based on moral relativism,” Kagen wrote, “but on the recognition that a law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends. Our decision does not prevent Congress from drafting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question (FUCT) in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, is commonly used today, generally signifies nothing except emotion and a severely limited vocabulary. The registration of such marks serves only to further coarsen our popular culture. But we are not legislators and cannot substitute a new statute for the one now in place.”
You don’t get appointed to the Supreme Court with a limited vocabulary. In her summary, Kagen took a shot at the clothing maker, suggesting that he didn’t need to use “shock talk” to sell his product, unless, of course, his clothes are, indeed, “FUCT.”
It’s likely that someone in Congress will remedy this by drafting a law that bans trademarks with specific “scandalous” or “immoral” terms. You can probably hear some of those if you listen to most any rap song, or watch anything on Netflix today.
Until then, there will likely be a mad rush to trademark as many nasty words as possible because our “popular culture” today has no resemblance to the pop culture that existed in 1905, when Las Vegas was still a speck of desert sand and America saw its first pizza joint.
Jeff Ackerman can be reached at 665-1160 or at email@example.com.