Iancu v. Brunetti
139 S. Ct. 2294
| SCOTUS | 2019Background
- Erik Brunetti sought federal registration of the trademark "FUCT" for a clothing line; the PTO refused under 15 U.S.C. § 1052(a) as containing "immoral or scandalous" matter.
- The PTO and its Trademark Trial and Appeal Board found the mark vulgar, offensive, and in context conveyed misogyny and depravity; they denied registration.
- Brunetti brought a facial First Amendment challenge to the "immoral or scandalous" bar in the Federal Circuit, which held the provision unconstitutional; the Supreme Court granted certiorari.
- The core legal question is whether the statutory bar is viewpoint-discriminatory (and therefore unconstitutional) or whether it can be read narrowly as viewpoint-neutral (e.g., limited to obscenity, vulgarity, profanity).
- The Supreme Court majority (Kagan) held the statutory restriction viewpoint-based and invalid under the First Amendment; the Court affirmed the Federal Circuit.
- Several Justices concurred/dissented in part: some would sever or narrow "scandalous" to cover only obscene/vulgar/profane marks and uphold that narrowed provision.
Issues
| Issue | Plaintiff's Argument (Brunetti) | Defendant's Argument (United States/PTO) | Held |
|---|---|---|---|
| Whether § 1052(a)'s "immoral or scandalous" bar is viewpoint-discriminatory | The bar forbids registration of messages that offend prevailing moral views; it disfavors ideas and thus is viewpoint-based and unconstitutional | The clause can be construed narrowly (viewpoint-neutral) to cover only offensive modes of expression (e.g., vulgarity, obscenity, profanity), making it constitutional | Held: The statute, read as written, is viewpoint-discriminatory and invalid; Court strikes the provision as facially unconstitutional |
| Whether the statute can be saved by narrowing construction to avoid viewpoint discrimination | Brunetti: narrowing cannot cure the facial viewpoint bias because the statutory text covers ideas, not just expression | Government: the statute is "susceptible" to a limiting construction to reach only lewd/sexually explicit/profane marks, which would be viewpoint-neutral | Held: Court refuses to rewrite statute; narrowing not permissible where text does not support it |
| Whether overbreadth or permissible applications save the statute | Brunetti: the provision is substantially overbroad — covers many ideas beyond obscene/vulgar words — so facial invalidation is appropriate | Government: some permissible applications exist (e.g., lewd/profane marks), so facial challenge should fail under overbreadth doctrine | Held: Overbreadth and viewpoint concerns doom the statutory bar; facial invalidation affirmed |
| Whether trademark registration is a context permitting content-based but viewpoint-neutral restrictions | Brunetti: registration is a government benefit but cannot be conditioned on viewpoint | Government/PTO (and some concurring Justices): in limited-forum/subsidy context, reasonable viewpoint-neutral content rules (e.g., banning vulgarity) are permissible | Held: Majority did not accept that argument to save the text; some Justices would uphold a narrowed, viewpoint-neutral ban on obscene/vulgar/profane marks (but majority struck the provision) |
Key Cases Cited
- Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination is an "egregious form of content discrimination" and presumptively unconstitutional)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (narrow construction of statutes proscribing "offensive" words to avoid constitutional problems)
- Cohen v. California, 403 U.S. 15 (1971) (profanity as expressive conduct; criminal punishment for wearing a vulgar political message violated the First Amendment)
- Miller v. California, 413 U.S. 15 (1973) (established the obscenity test)
- United States v. Stevens, 559 U.S. 460 (2010) (overbreadth analysis and limits on rewriting statutes to make them constitutional)
- FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (government regulation of certain profane broadcast content upheld as to manner of expression)
- Brandenburg v. Ohio, 395 U.S. 444 (1969) (permits regulation when speech is directed to inciting imminent lawless action and likely to produce it)
- Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (recognizing that shocking or offensive speech may lack absolute protection in some contexts)