In 2016, Marco Rubio sparred sharply with Donald Trump as the two vied for the GOP presidential nomination, at one point joking that Trump couldn’t be trusted because he has small hands. This thinly veiled anatomical insult eventually became part of a landmark First Amendment case which found its way to the Supreme Court. On June 13, the Court issued its decision on this matter, ruling that citizens do not possess a First Amendment right to trademark another person’s name without their consent, even if the subject of the trademark is a public figure.
Small Hands Trump Joke Takes Root
In his original debate stage quip, Rubio joked about Trump’s hand size, saying “you know what they say about men with small hands?” and claimed the Donald’s “hands are the size of someone who is 5’2”.” Yet-to-be-POTUS Trump took the belittling bait, countering that if Rubio was “suggesting something else must be small” that “I guarantee you there’s no problem.” This juvenile deterioration became the butt of sufficient public amusement that two years later California attorney Steve Elster filed a trademark application for the phrase “Trump Too Small” with the US Patent and Trademark Office (PTO).
Elster’s application was denied pursuant to Section 2(c) of the Lanham Act, which requires the PTO to refuse registration of trademarks that identify a living individual without that individual’s written consent, which Trump had not provided to Elster. Alleging that this denial violated his free speech rights to criticize a politician, Elster filed an appeal against the PTO in the US Court of Appeals for the Federal Circuit. The Appeals Court determined that Section 2(c) violated the First Amendment because it was a content-based restriction on speech.
In a June 13 decision in the Katherine K. Vidal, Undersecretary of Commerce for Intellectual Property and Director, United States Patent and Trademark Office v. Steve Elster case, justices reversed the Appeals Court ruling, determining that it has long been customary for the “names clause” of Section 2(c) to coexist with First Amendment protections. The Court cited a long history that generally held that a person essentially “owns” their name and cannot have it unilaterally appropriated by others. There is no political exception for this protection. Justice Clarence Thomas opined:
“Recognizing a person’s ownership over his name, the common law restricted the trademarking of names. It prevented a person from trademarking any name—even his own—by itself. In ‘the early years of trademark law,’ courts recognized that ‘there can be no trade-mark in the name of a person, because . . . every person has the right to use his own name for the purposes of trade.’” (p. 13)
Content Discriminatory but Viewpoint Neutral
There is some distinction in Constitutional law between government action that impinges free speech liberties directly and denial of a public benefit (such as trademark protection) to advance said liberties. However, the pivotal issue for the majority decision in Vidal v. Elster was a narrow holding that the names clause is well established in history and tradition and that it is viewpoint-neutral even if it constitutes otherwise suspect content discrimination.
Clearly, Section 2(c) is a content-based restriction that specifically targets individual proper names. But the PTO does not exercise bias in determining whose names will be prohibited from unauthorized trademark and those who will not: “Let’s Go Brandon!” or “Let’s go Biden!” are presumably as equally off limits to trademark protections as phallic allusions to Donald Trump.
In emphasizing a carve-out for viewpoint-neutral content discrimination, the Supreme Court affirmed clear legal boundaries protecting a person’s right – even when that person is Donald Trump – to ownership of their own name and reputation:
“The Lanham Act’s names clause has deep roots in our legal tradition. Our courts have long recognized that trademarks containing names may be restricted. And, these name restrictions served established principles. This history and tradition is sufficient to conclude that the names clause—a content-based, but viewpoint-neutral, trademark restriction—is compatible with the First Amendment. We need look no further in this case.” (p. 12)
Trump Wins the Hand
The general rule of First Amendment law is that content-based regulation of speech by government is presumptively unconstitutional. The Vidal v. Elster decision exempts government trademark restrictions that are viewpoint-neutral from automatic heightened scrutiny. Striking a balance between individual property rights and political speech liberties, the Court reasoned that Elster’s free speech rights to lampoon the American president did not trump Trump’s right to ownership of his own moniker.
