Flag Burning in the News

After recent protests in Berlin where a pro-Palestinian group burned homemade Israeli flags, calls for a change in the law regarding flag burning became louder than usual. Students are encouraged to draw comparisons to how the U.S. Surpeme Court has handled this issue and consider how they would react to these calls.

Prior Restraint in the News

If students in my constitutional law courses didn't believe me when I told that prior restraints of the press are considered presumptively invalid, a recent decision by the Iowa Supreme Court shows just how seriously courts in the United States take attempts to silent the press. At the center of the dispute are a lawyer, a newspaper who was about to publish information about the lawyer, and a Supreme Court Justice who initially ordered the newspaper not to publish the information, and then lifted the order. The Des Moines Register has more. 

Restricting Indecent Trademarks: Not So Easy

Near the end of my lecture on freedom of speech, I touch upon the idea of whether indecent speech is less protected. My conclusion, as students might recall, is that indecent speech is basically fully protected, but there are certain circumstances where it's protection is limited (in schools and on public airwaves for example). A recent case handed down by the Court of Appeals for the Federal Circuit (one of the two federal courts of appeals located in Washington D.C.) illustrates why I think indecent speech generally received full First Amendment protection. To be clear, many others take this view as well.

The Hollywood Reporter helps us out here:

Barring trademarks that include immoral or scandalous language is an unconstitutional restriction of free speech, the United States Court of Appeals for the Federal Circuit ruled Friday.

Eric Brunetti founded the fuct clothing brand in the 1990s, but decades later was denied a trademark for the label because the U.S. Patent and Trademark Office found it violated the Lanham Act's ban on immoral or scandalous matter.

Here it might be useful to point out that according to the Urban Dictionary, the word "fuct" is the past tense of "fuck" in urban slang. The Reporter goes on:

Brunetti then took his case to federal court, arguing that fuct isn't vulgar — but, even if it was, barring immoral marks is unconstitutional.

The federal circuit agreed with him on the second argument — which wouldn't have been possible until June, when the U.S. Supreme Court overturned case law that held restricting someone's right to have a trademark didn't necessarily restrict that person's free speech. In that case, involving rock band The Slants, the court found the USPTO’s denial of trademarks had a chilling effect on speech. 

While the court finds the use of vulgar trademarks in commerce discomforting, it acknowledges that similarly offensive images and words have secured copyright protection.

In short, the courts have consistently held that even "discomforting" words enjoy full First Amendment protection.