In earlier cases, the justices struck down provisions of the trademark law on First Amendment grounds. But the one at issue here seemed likely to survive.The Supreme Court, which has in recent years struck down parts of the trademark law that prohibited registration of immoral, scandalous and disparaging marks, did not appear ready on Wednesday to do the same thing in a case concerning a California lawyer’s attempt to trademark the phrase “Trump too small.”The provision at issue in the case forbids the registration of trademarks “identifying a particular living individual except by his written consent.”There seemed to be consensus among the justices that the provision was different from the ones the court had rejected in 2017 and 2019. Some said that it did not discriminate based on viewpoint, which the First Amendment generally does not allow the government to do. Others added that there is a long history of allowing people to control the use of their names in commercial settings.Some justices pressed a more fundamental objection. Noting that the lawyer, Steve Elster, could use the phrase on merchandise without trademarking it, they wondered whether the First Amendment applied at all.“The question is, is this an infringement on speech?” Justice Sonia Sotomayor said. “And the answer is no.”The contested phrase drew on a taunt from Senator Marco Rubio, Republican of Florida, during the 2016 presidential campaign. Mr. Rubio said Donald J. Trump had “small hands,” adding, “And you know what they say about guys with small hands.”Mr. Elster, in his trademark application, said that he wanted to convey the message that “some features of President Trump and his policies are diminutive.” He sought to use the phrase on the front of T-shirts with a list of Mr. Trump’s positions on the back. For instance: “Small on civil rights.”A unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled that the First Amendment required the trademark office to allow the registration.“As a result of the president’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-president’s approach to governance, the government has no interest in disadvantaging Elster’s speech,” Judge Timothy B. Dyk wrote for the court.The Biden administration appealed the Federal Circuit’s ruling to the Supreme Court.Malcolm L. Stewart, a deputy solicitor general who was presenting his 100th Supreme Court argument, said that granting Mr. Elster a trademark would allow him to forbid others from using it, diminishing the amount of the political speech the First Amendment is meant to protect.Chief Justice John G. Roberts echoed the point. “Particularly in an area of political expression,” he said, “that really cuts off a lot of expression other people might regard as important infringement on their First Amendment rights.”Justice Elena Kagan asked Jonathan E. Taylor, a lawyer for Mr. Elster, to identify a precedent in which the court had struck down a law conferring a government benefit like trademark registration that did not involve viewpoint discrimination.He replied, “I can’t point you to a case that’s precisely on all fours.”Justice Kagan responded that she could cite many decisions supporting the opposite proposition, naming a half-dozen.Commentary on the size of Mr. Trump’s hands has a long history. In the 1980s, the satirical magazine Spy needled Mr. Trump, then a New York City real estate developer, with the recurring epithet “short-fingered vulgarian.”In 2016, during a presidential debate, Mr. Trump addressed Mr. Rubio’s critique.“Look at those hands, are they small hands?” Mr. Trump said, raising them. “And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”If the Supreme Court upholds the provision challenged in the new case, it will be the end of a trend.In 2017, a unanimous eight-justice court struck down a different provision, one forbidding marks that disparage people, living or dead, along with “institutions, beliefs or national symbols.”The decision, Matal v. Tam, concerned an Asian American dance-rock band called the Slants. The court split 4 to 4 in much of its reasoning, but all the justices agreed that the provision at issue in that case violated the Constitution because it took sides based on speakers’ viewpoints.In 2019, the court rejected a provision barring the registration of “immoral” or “scandalous” trademarks.That case concerned a line of clothing sold under the brand name FUCT. When the case was argued, Mr. Stewart told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”Justice Kagan, writing for a six-justice majority, did not dispute that. But she said the law was unconstitutional because it “disfavors certain ideas.”If the justices were divided in the new case, Vidal v. Elster, No. 22-704, it was over the rationale for ruling to uphold the law before them, not on the outcome.Justice Samuel A. Alito Jr., for instance, asked Mr. Stewart for a theory that would allow him to vote for the government without rejecting a position he had staked out in an earlier case.The justice added that the task was not pressing. “I mean,” he said, “you don’t need my vote to win your case.” More
