A display of bad taste can be terrible, but viewpoint discrimination is unconstitutional.
Rebels without a clue — wherever they are — got a boost this week from the U.S. Supreme Court.
The high court ruled in favor of a California clothing maker who decided that there were sales — and money — to be made by pushing the rhetorical envelope. In other words, this was a case about using bad taste to make good money.
The bottom line — this is, after all, a case about the bottom line — is that clothing manufacturer Eric Brunetti has a free speech right to win trademark protection for his brand — an acronym of the phrase “Friends U Can’t Trust.”
What does that represent? Justices and lawyers went through rhetorical contortions to avoid the expletive utterance the acronym represents.
Perhaps government lawyer Malcolm Stewart put it best when he said the acronym represents “the equivalent of a past-participle former of the paradigimatic profane word of our culture.”
Those who still can’t figure it out should contact the nearest English teacher, preferably a bawdy one.
At any rate, the court majority ruled that the government cannot reject a trademark claim because it viewed the words or messages as “scandalous.”
“The most fundamental principle of free speech law is that the government can’t penalize or disfavor or discriminate against expression based on the ideas or viewpoints it conveys,” Justice Elena Kagan wrote for the majority.
In that respect, the high court reiterated a stance it took two years ago in a similar trademark dispute in which the government refused trademark protection for a word widely interpreted as a racial slur.
In that case, an Asian band called itself “The Slants,” an attempt at irony that drew the ire of the trademark office. In that case, the government rejected trademark status because it perceived the word in question as “disparaging.”
In this case, the offensive acronym was rejected as an acronym because it was labeled “scandalous.”
Kagan wrote that trademark protection is granted when “a mark’s message conforms with society’s sense of decency or morality. But it prohibits any mark expressing a contrary view — when it goes against that societal sense. That’s exactly the kind of discrimination against ideas that the First Amendment prohibits.”
It’s no surprise the court ruled as it did. The justices have a solid record when it comes to protecting offensive or controversial speech — the only kind of speech that requires protection.
As an example of impermissible viewpoint discrimination, Kagan cited two requested trademarks wrongly rejected and another that was approved.
They were “Marijuana Cola” and “You Can’t Spell Healthcare Without THC,” rejected for glamorizing drug use, and “Say No to Drugs,” a phrase expressing an anti-drug message.
Most people realize the side of the argument they embrace, but that’s not the point — government should not be in the business of deciding which viewpoints the public sees or hears.
As for the controversial clothing acronym, it’s not that big a deal. The clothing maker figures some rebel knuckleheads will get a kick of out of startling adults and their more strait-laced peers.
Maybe. But knowing their T-shirts have won the official protection of the U.S. Supreme Court will take some of the fun — and profit — out of it.