The Supreme Court will be on the bench Wednesday for a single hearing, focusing on a Californian’s plea for the right to get trademark protection for a T-shirt that is unflattering toward former President Donald Trump. It is a dispute left over from one of the less-edifying moments of the Republican fight for the presidential nomination in 2016. But it is of historic importance to the Constitution.
Tomorrow’s hearing: Vidal v. Elster Scheduled for one hour, the hearing will begin at 10 a.m.
The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
Background of this case: The protection that the Constitution’s First Amendment gives to free speech is most expansive when what someone says or writes is offered as a political idea. The Supreme Court has often repeated the remark first made by the late Justice William J. Brennan, Jr: “Debate on public issues should be uninhibited, robust and wide-open.”
For much of the past seven or so years, the public rhetoric of Donald J. Trump and of some of his critics has been truly uninhibited, sometimes to the point of acute embarrassment. Are there any surviving norms for decent public discourse? Does the guarantee of free political speech reach as far as it now seems to go?
The Supreme Court on Wednesday will explore questions like those, in a case on the legal status of a T-shirt that, if its printed message is read as apparently intended, is a smutty commentary on Trump’s supposed lack of virile manhood. The T-shirt message reads: “TRUMP TOO SMALL.”
A California lawyer and Democrat, Steven Elster, created that shirt to make a political point as well as perhaps make some money out of a verbal joust seven years ago between Trump and Florida Republican Senator Marco Rubio. At the time, they were among GOP candidates competing for their party’s presidential nomination.
Trump, in his customary fashion of giving his rivals disparaging nicknames, had repeatedly referred to the Florida Senator as “little Marco.” Apparently tiring of the tactic, Rubio decided to retort during an appearance at a rally in the small southwestern Virginia town of Salem.
Here is what Rubio was recorded by news media as saying: “He’s always calling me ‘little Marco.’ I’ll admit he’s taller than me. He’s, like, 6’2”, which is why I don’t understand why his hands are the size of someone who’s 5’2”. Have you seen his hands? And you know what they say about men with small hands?” His audience, apparently getting the point about Trump’s private anatomy, “roared with approval.”
Sometime later, Steven Elster, who practices labor law in Concord, Calif., got the idea for the T-shirt. In order to enhance the commercial value of his product, Elster sought to get its official recognition as a trademark. He applied to the U.S. Patent and Trademark Office to register it. (The holder of a trademark can sue to enforce its exclusivity only if the mark has been officially registered.) His request was denied. That is when this political melodrama became a constitutional dispute.
The Constitution and trademarks: The Constitution’s “Patent Clause” in Article I gives Congress broad power to provide creators of physical inventions, authors of new writings and composers of new music the exclusive right for a specified period of time to publish or use their works and derive commercial gain from doing so.
When Congress in 1870 passed the first major federal law to extend that type of legal protection to holders of trademarks on commercial goods, Congress claimed authority to pass that measure under the Patent Clause. However, the Supreme Court in 1879 struck it down, declaring that the Patent Clause dealt only with patent and copyright, and not trademarks. (Congress then passed a new trademark protection law, basing it upon its authority to pass laws to regulate “commerce.”)
Under federal law now, trademarks are defined as distinctive forms of symbols, words or phrases, or designs that serve to identity the product to which they apply and its source, to avoid confusing consumers. If such a trademark becomes well-known or established, it can continue to draw customers to the product itself – a considerable marketing advantage.
To qualify for registration by the federal government, a trademark must be distinctive and it must have no practical uses other than identifying the product or its source. To be valid, the mark must actually be used in commercial transactions.
The Lanham Act, passed by Congress in 1946 and put into effect in 1947, now governs the trademark registration process and the legal status of registered marks. The Act includes several provisions that spell out when a trademark is not eligible to be registered. In recent years, the Supreme Court – relying upon First Amendment free-speech principles – has nullified two of those bans on registration: a ruling in 2017 overturning the bar to registration of a mark deemed to be disparaging of someone or some cause, and a decision in 2019 against the bar for scandalous or immoral marks.
In the case of Elster’s TRUMP TOO SMALL mark, the Trademark Office relied on another exception in refusing registration, for any mark that named a living person without that person’s written consent. It turned aside Elster’s argument that the message was intended to be a negative comment on the few accomplishments Elster believed Trump had achieved as President. It was enough, the Office said, that the mark named Trump explicitly because the public would understand that to be a reference to only one person: Donald Trump.
A federal appeals court overturned that decision, concluding that the Office had interfered with Elster’s free-speech rights, including a right to criticize a public official. The government, that court said, has no interest in restricting speech that is critical of government officials as public figures without their consent. It ordered the Trademark Office to register Elster’s T-shirt mark. The appeals court did not go further and strike down altogether the provision in the Lanham Act.
The government official who had been sued by Elster, Katherine K. Vidal, director of the Trademark Office and an Undersecretary of Commerce, appealed the case to the Supreme Court, and the Justices granted review.
The question before the Court: Is it unconstitutional, under the First Amendment’s free-speech Clause, for the government to refuse to register a trademark that is critical of a specific government official or public figure?
Significance: It would be easy to underestimate the importance of this case, because the facts at issue do not seem to deserve much more than a snicker. Here, the right of free speech is being claimed for a mere commercial transaction that involves a crude assertion that does not seem to have much redeeming social value.
Still, out of such tawdry circumstances can emerge a valued principle of justice – the one stated by Justice Brennan about robust discourse over America’s political differences.
The conservative-dominated Court, under Chief Justice John G. Roberts, Jr., has been drawing heavy criticism for a number of decisions that tend to reinforce a reputation for insensitivity to the rights of people, but in one area in particular – First Amendment free-speech rights – it has shown a strong, and continuing, appreciation of the value of open discourse in an open society. It does not assume for itself a role to clean up political rhetoric, but has recognized positive civic virtue even in expression that is hardly virtuous in tone or content.
The Trump T-shirt case could provide another opportunity for the Court to look beyond titillation to a nobler perception of wide-open democratic competition, one which trusts the people themselves to have the ability to translate smut into a meaningful choice in the voting booth.
After Wednesday’s hearing, the Court will next be on the bench on Monday, for a hearing on the federal government’s plea for immunity to lawsuits claiming that a federal agency violated the law protecting consumer borrowers from flawed reports about their credit status.