Cline on the Constitution

Cline on the Constitution

While I was on vacation the Supreme Court began to wind down their current term and issue opinions on a few highly anticipated cases.  

As usual there were a few smart opinions and a few stupid ones.  And following the trend over the past decade, a lot of 5-4 votes.  Though there has been some discussion that the split wasn’t always between liberal and conservative, in truth, when it wasn’t split along ideological lines, the Court was invariably punting on the issue by rejecting a case for review or returning it to a lower court for further proceedings.  

Overall there were no major surprises or radical departures from established precedent.  Most of the interesting action was in dissenting opinions both from the Court’s liberal as well as conservative wings. Strong dissenting opinions are often harbingers of the Court’s future direction.  I’ll touch on a few of the more important ones over the next few segments of Cline on the Constitution.

The first case I will review is a Freedom of Speech case. 

Iancu v Brunetti is a prime example of how even Supreme Court Hustices can get twisted up in the bedsheets of their own arcane legalize and leave our society a little less livable. 

The Court ruled that a federal rule barring trademark registration for a line of clothing emblazoned with vulgar words because the words were deemed “immoral or scandalous” resulted in “viewpoint discrimination.” 

One doesn’t have to be a prude to lament how cheap, vulgar, profane and disrespectful major aspects of our society have become.   In college we were all taught to admire the courage of Lenny Bruce and his exploration of the profane.  His legacy? Just take your five-year-old with you to the mall or a ballgame, or just turn on the television any time of the day and be confronted with the most tawdry, shameless, embarrassing language and images. 

The Iancu decision, while not earth-shattering, lays one more stepping stone on the path to the coarsening of America. It’s an example we often see of Justices ignoring the needs of the People they are to serve and of them becoming more Pharisee than wise and prudent arbiters of Law.   

In the Iancu case, a man founded a “clothing line” in which he wanted to print in large letters the word F U C T. 

And, yes, it was meant to be read, as the Supreme Court noted, “as the equivalent of the past participle form of a well-known word of profanity.”   

He was denied a trademark for the use of the term on his products under federal rules passed by Congress which allowed the rejection of trademark registration for terms that were “immoral or scandalous.”  

Justice Sotomayor, like the other justices was aware that their decision would have a negative impact. “The Court’s decision today will beget unfortunate results, with the (rule) struck down as unconstitutional viewpoint discrimination.  The Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.” 

Justice Breyer says, “While some consumers may be attracted to products labeled with highly vulgar or obscene words, others may believe that such words should not be displayed in public spaces where goods are sold and where children are likely to be present. They may believe that trademark registration of such words could make it more likely that children will be exposed to public displays involving such words.  To that end, the Government may have an interest in protecting the sensibilities of children by barring the registration such words.”

In the majority opinion, however, penned by Justice Elena Kagan, the court focused not on the harm to society, but on a completely hypothetical possibility that to reject F U C T was not about the government drawing the line at trademarking “lewd, sexually explicit or profane,” material which the Court admits it is, but that the term “immoral or scandalous” adopted by Congress may include other, unknown, remote, but possible protected speech. 

While some justices argued for a narrow reading of the word “Scandalous,” the majority, in the most politically correct fashion, could not ignore the use of the word “moral.”

The word “Moral” to them “connoted a preference for rectitude and morality over the opposite.” 

The Court fears if they uphold a rule because it opts for the moral over the immoral, the immoral viewpoint is discriminated against. That, they maintain, is unconstitutional.  

We must, they say, again in the manner of the Pharisees, give the immoral their due. Justice Kagan does the mental gymnastics necessary to argue that “immorality” somehow means all conduct that offends the majority. That is not what it means, and I suspect she knows it. Like the most common of lawyers, she just wishes to win the technical argument.  And, neither she nor the other justices will admit of any responsibility for what their rulings leave the rest of us to face.  

Finding the statue “overbroad” The Court, after detailing a number of hypothetical scenarios not before the Court.  Justice Kagan states,  “There are a great many immoral or scandalous ideas in the world and the (Act) covers them all.  It therefore violates the First Amendment.” 


But does that mean we and our children have to see them on tee shirts protected by the trademark laws of the United States?  

As the guys said on ESPN said, (when it used to be all about sports), upon seeing an unbelievable play on the football or baseball field, “Come on, Man!”