Brett Stuff
Judging the Judges
Term Year: 2018

Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office, Petitioner v. Erik Brunetti

Summary Analysis

DATE: 2019-06-24
DOCKET: 18-302
NAME: Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office, Petitioner v. Erik Brunetti

   AUTHOR: Kagan
   JOINING: Thomas, Ginsburg, Alito, Gorsuch, Kavanaugh
   GOOD: Yes

OPINION: Concurring
   AUTHOR: Alito
   JOINING: None
   GOOD: No

OPINION: Concurring
   AUTHOR: Roberts
   JOINING: None
   GOOD: No

OPINION: Concurring
   AUTHOR: Breyer
   JOINING: None
   GOOD: No

OPINION: Concurring
   AUTHOR: Sotomayor
   JOINING: Breyer
   GOOD: No

Case Commentary


And if you think I know the first thing about The Law (not being a lawyer nor having any formal legal training), you would be FUCTING WRONG!™

The First Amendment to The Constitution of the United States of America reads:
Congress shall make no law... abridging the freedom of speech.
Not a single one.

That really covers my point of view on this matter.

The Court seems to like the phrase legitimate government interest. And would appear to be happy to throw out First Amendment protections (all of them) on the slightest pretext, as almost anything (and everything) can be massaged so that it serves a legitimate government interest.

Thus, I find legitimate government interest to be the wrong standard and would change it to unavoidable government interest.

And about the only unavoidable government interest that I can come up with that justifies curtailing Free Speech revolves around Government Secrets: Top Secret Documents and the like.

I'd make everything else fair game.

When speech is just speech, I have no problem with it.

And speech is almost always (almost always) just speech.

As to Shouting Fire in a Crowded Theater, I have a funny story about that. I was at a stage production once. And everyone in the audience thought the smoke billowing about and the fire alarms going off was part of the production's opening sequence... including me. So in my personal experience, one can Shout Fire in a Crowded Theater... and absolutely nothing will happen.

Typically, Actors do not elicit Action from the Audience... which one can bemoan as a tragic state of affairs.

But it is what it is.

Meaning, what happens to the Actors on the Stage (one way or another) doesn't much matter to the folks in the cheap seats.

I'm sure this is a cutting metaphor... of some sort... about something.

As to Fraud and such, I would push that into Contract Law and not muddy the waters of Free Speech.

If one tells another that a glass of poison only contains wine, then Murder has occurred. It's hardly a Free Speech Issue.

The Partial Dissents (of which there are many) are of the opinion that 'obscence, vulgar, and profane' words should not be allowed.

But then, the Dissent, also, points out 'without the profanity, the message is not quite the same.'

Or more directly (keeping in mind that this is in Sotomayor's Dissent where she is arguing against the use of swear words, so I'm not totally sure about the point she is trying to make):
Freedom of speech is a cornerstone of our society, and the First Amendment protects Brunetti's right to use words like the one at issue here.

Thus, Sotomayor is for Freedom of Speech, just not this Freedom of Speech.

To make sense of this discrepancy, Sotomayor (as I read her Opinion) stresses the importance between granting a right and granting a privilege.

Eh, maybe I said that wrong.
The Government has a reasonable interest in refraining from lending its ancillary support to marks that are obscene, vulgar, and profane.

First of all, the government has no such interest. Speech is either 100% Unrestricted or it is Restricted. And Restricted Speech is not Free. It is Restricted.

Secondly, granting a boon (Trademark protection in this instance) to one group and not another is equivalent to extracting a tax from one group and gifting it to another.

Unequal Protection Under the Law is Unequal Protection Under the Law. And there is no way to make it otherwise.

A Benefit given to one group and not another is equivalent to Inflicting Harm on the out group.

It's Discriminatory.

Pure and simple.

And as The Court says in Kagan's Opinion:
The government cannot discriminate against "ideas that offend."
Case Closed!

It's never been clear (to me) how The Court decides to grant certiorari. But apparently, whenever 'a lower court has invalidated a federal statue," The Supreme Court grants certiorari as a matter of course.

In other news, I don't really know how obscenity is determined or why a group of us couldn't get together and decide that the bodily functions of eating, sleeping, and breathing are obscene.

I mean, as far as I am concerned "patently offensive sex-related material" does not exist.

Who does it offend?


The Universe?

Or a group of folks with thin skin who have decided to become offended... much like I am offended whenever they continue to pursue life by eating, sleeping, or breathing.

Judging the Judges

Next Entry


"F[***] the Draft."

Even The Supreme Court is Afraid (or unwilling) to use certain words.

Free Speech?

My @$$!

In other news, aren't you impressed? I wrote an entire post about a Trademark Case (can swear words be Trademarked or not) without once mentioning that I'm philosophically opposed to Trademarks.

I must be slipping.

© copyright 2019 Brett Paufler
A Personal Opinion/Editorial