Jim Dey | What's appropriate wardrobe for rebel without a clue?

Jim Dey | What's appropriate wardrobe for rebel without a clue?

"Watch your phraseology."

That's what Mayor Shinn, the chief executive of River City, Iowa, said to a certain young upstart in Meredith Wilson's classic show, "The Music Man."

Mayor Shinn wasn't present Tuesday at the U.S. Supreme Court in Washington, D.C. Nonetheless, the high court's nine justices took the mayor's admonition to heart when they heard oral arguments about the legal propriety of a provocative trademark sought by a clothing manufacturer.

The disputed trademark represents an acronym of the phrase, "Friends U Can't Trust."

The justices obviously read the briefs and figured out the double meaning. Their questions indicated they have thought deeply about the issue.

But reading and thinking are two things. Saying the acronym out loud in the nation's highest courtroom is quite another.

Hence the justices vaguely referred to "what's involved in this case" and "the issue" before the court.

The prize for best euphemism went to government lawyer Malcolm Stewart, who described the acronym as "the equivalent of a past-participle form of the paradigmatic profane word in our culture."

For those who haven't figured it out yet, the high court is grappling with yet another in an endless series of free-speech disputes.

The U.S. Trademark Office rejected a requested trademark for this particular past participle — the "phonetic equivalent of a vulgar word" — because it found it to be "scandalous and immoral." Clothing manufacturer Eric Brunetti contends the trademark office's decision is unconstitutional because it is a "content-based restriction of free speech in violation of the First Amendment."

More specifically, according to Megan Carpenter, a legal analyst for Scotusblog.com, Brunetti argues that "determining what is offensive to the general public necessarily prefers some viewpoints over others." A federal appeals court agreed.

Federal law allows trademark requests to be denied on a variety of grounds, including those that are "disparaging" and "scandalous and immoral."

Two years ago, the high court ruled that the trademark office unconstitutionally denied a trademark to an Asian-American band that called itself "The Slants," perceived by many to be a racial slur.

"Giving offense is a viewpoint," the court unanimously ruled.

The question in Brunetti's case is "whether or not the immoral/scandalous-marks provision is viewpoint-neutral, and which standard of scrutiny is appropriate" to apply, Carpenter writes.

Of course, as social standards change, what's offensive also changes.

Justice Ruth Bader Ginsburg acknowledged older generations might be offended by the acronym. But how about younger people, she asked? Probably not so much, a lawyer replied.

The oral arguments descended into the hyper-technicality of the law. For example, the government argued that denying the trademark based on the "scandalous and immoral" standard does not restrict speech, but instead "imposes a condition on the availability of a government benefit," a trademark.

That's because, if a trademark is denied, "the applicant still can use the mark" without the benefit of a trademark.

A side issue that may carry some weight with the justices is the hugely inconsistent manner with which the trademark office has decided trademark issues. In an appendix to the case, lawyers put together a four-page guide listing the inconsistency of decisions granting and denying trademarks. The list of those accepted and rejected would, according to one news account, "make any sailor blush."

All told, it was a jovial session at the high court, where those present saw the humor in the efforts to avoid explicit language.

Among the more interesting disclosures was the identification of the target market for clothing bearing the disputed acronym. It was described as "young men who want to be rebels."

"Well, that may be the audience (Brunetti) is targeting. But that's not the only audience he reaches," Chief Justice John Roberts replied.

Jim Dey, a member of The News-Gazette staff, can be reached at jdey@news-gazette.com or 217-351-5369.

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