By: Richard M. Blau, Chair of the firm's Alcohol Beverage Department
In 2017, the U.S. Supreme Court and the Court of Appeals for the Federal Circuit both invoked the First Amendment in separate cases to strike down certain federal trademark registration restrictions barring "scandalous and immoral" language. Those cases raised questions about whether similar federal alcohol laws barring such language from beverage labeling likewise violate the First Amendment. In a decision handed down on June 24, 2019, the U.S. Supreme Court revisited the government’s authority to restrict immoral and scandalous speech, balancing the government’s interest in barring such language under the federal Lanham Act against the protections afforded to those who speak it under the First Amendment to the U.S. Constitution. In the case of Iancu v. Brunetti, 1 the Court once more ruled in favor of free speech and the First Amendment. Justice Kagan delivered the majority opinion in which five other justices joined, with accompanying concurrences and concurring/dissenting opinions authored by several other justices.2 In ruling that the Lanham Act’s prohibition on registration of immoral or scandalous trademarks violates the First Amendment, the Court made the clear point that government is not entitled to exercise a "viewpoint bias" that allows the U.S. Patent and Trademark Office (USPTO) to refuse registration of trademarks communicating "immoral" or "scandalous" views about (among other things) drug use, religion, and terrorism, while approving registration of marks expressing more socially-accepted views on the same topics.