The Federal Circuit's decision is affirmed. Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh join Justice Kagan's opinion.
Alito has a concurring opinion; Roberts and Breyer have opinions concurring in part and dissenting in part. Sotomayor has an opinion concurring in part and dissenting in part, joined by Breyer.
This was the case in which Erik Brunetti tried unsuccessfully to register the trademark "FUCT" for his clothing line.
Kagan writes that the mark "is pronounced as four letters, once after the other: F-U-C-T."
The Court is very critical here (in Argus Leader) of the statutory interpretation in a 1974 D.C. Circuit case that had been the leading authority on this question for a long time. Note that three of the liberals show at least some sympathy with the D.C. Circuit's rule, but Justice Kagan simply joins Justice Gorsuch's opinion. I think that signals something about the force of modern, textualist statutory interpretation on the Court.
Her opinion is quite short, only 11 pages. There are more opinions, and I'm going back in to wait for them. Back in a second.
Justice Kagan, showing her usual style: "According to Brunetti, the mark (which functions as the clothing’s brand name) is pronounced as four letters, one after the other: F-U-C-T. See Brief for Respondent. But you might read it differently and, if so, you would hardly be alone. See Tr. of Oral Arg. 5 (describing the brand name as “the equivalent of [the] past participle form of a well-known word of profanity”)."
Justice Alito files a concurring opinion in part to make clear that...: "Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be “immoral” or “scandalous” can easily be exploited for illegitimate ends. Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas."
We have our fourth and final opinion in the day, in Dutra Group v. Batterton. It is by Justice Alito. The court rules that a seaman cannot recover punitive damages on a claim of unseaworthiness. The NInth Circuit is reversed and remanded.
The vote is 6-3. Ginsburg dissents, joined by Breyer and Sotomayor.
Worth noting that Justice Gorsuch's opinion in Food Marketing Institute still leaves open a substantial FOIA Exemption 4 question: "Can privately held information lose its confidential character for purposes of Exemption 4 if it’s communicated to the government without assurances that the government will keep it private?"
The respondent in the case, Christopher Batterton, was working on a ship owned by Dutra Group when a hatch cover blew open and crushed his hand; he sought not only compensation for his injuries but also punitive damages.
Some interesting line-ups today, with Justice Kagan parting ways with some of her liberal colleagues to a greater extent than usual.
Justice Alito is reading from his opinion right now. I don't know whether they are doing bar admissions today, but once they have finished I will know when they will be back for the next round of opinion announcements. I will stay on the live blog at least until then.
Justice Alito is still reading from his opinion in Dutra Group. It is, as I think I mentioned before, the final opinion of the day.
They are going to be back on Wednesday at 10 am.
With apologies for the Fermat's-last-theorem-esque nature of this comment, the underlying theories of the First Amendment at work in Iancu are super-interesting, and they in turn have super interesting political valence. The person who seems most willing to trust the government's speech regulation is Sotomayor!? I think I understand what's going on here, but there isn't space on this blog to flesh it out.
As @Beaufort points out, today's opinions do make it look like Alito is writing in Mitchell v. Wisconsin, the drunk-driving/implied-consent case. And that's probably good news for Wisconsin (and for many other states w/implied-consent laws).
An irony about Brunetti that economists and IP professors probably appreciate -- but others might not -- is that if you don't like curse words, then you should probably be pleased w/Justice Kagan's majority opinion. TM protection for profanity allows trademark holders to restrict their use, whereas a prohibition on TM registration for scandalous marks would likely have the opposite effect
With the action winding down, I'm off for the day. I'll be down at the Court for Wednesday and look forward to seeing you all then.
Hi all, I am shutting us down. We will be back Wednesday!
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