[Ed.: For this guest post we welcome back occasional contributor Will Foster, 2024 graduate of Columbia University.]
Last Thursday, originalists were treated to a fascinating debate between Justices Thomas and Barrett in Vidal v. Elster, a case about the constitutionality of a provision of federal trademark law. Although the Court unanimously held that the provision at issue—the “names clause” of the Lanham Act—did not violate the First Amendment, the justices were somewhat fractured in their reasoning. A majority of the Court, in an opinion by Justice Thomas, held that “history and tradition establish” the constitutionality of banning registration of trademarks containing names. But Justice Barrett wrote separately to express concern about the Court’s methodology—specifically, “its choice to treat tradition as dispositive of the First Amendment issue.” Instead, she would adopt a test under which trademark restrictions are constitutional if “they are reasonable in light of the trademark system’s purpose of facilitating source identification.”
Each of the opinions has its virtues. Justice Thomas’ opinion (and even more so Justice Kavanaugh’s concurrence) takes a minimalist approach. Whatever standard might govern other cases, the majority says, this case is a simple one: Regardless of whether “an equivalent history and tradition” is necessary to uphold a trademark restriction, such a “historical pedigree” is at least sufficient. (Minimalist judicial opinions often embody what Cass Sunstein calls “incompletely theorized agreements,” and this seems like a classic example.) Justice Barrett, meanwhile, seeks to articulate “a generally applicable principle” that would not only resolve the instant case but also “bring clarity to the law” in this area. The thoughtful exchange between the justices on these points is a worthwhile read.
Yet there are some puzzles, too. All the justices seem to agree that trademark law has historically been content-based, and that—in the majority’s words—“the inherently content-based nature of trademark law has never been a cause for constitutional concern.” This history, in turn, helps show why content-based trademark registration laws need not be subject to heightened scrutiny as a matter of course. Yet I wonder whether similar arguments could have been made in Matal v. Tam or Iancu v. Brunetti, two prior cases in which the Court struck down viewpoint-based provisions of the Lanham Act. For instance, in Iancu, the Court invalidated the Act’s bar on “immoral or scandalous” trademarks. But as Michael Ramsey noted earlier on this blog, it seems unlikely that there is a “history or tradition of registering marks consisting of thinly disguised profanity.” Moreover, some version of the provision held unconstitutional had been on the books since 1905, and the government’s brief in Iancu pointed to an 1883 international treaty (ratified by the U.S. in 1887) containing similar language. In a 1914 trademark case, the Supreme Court recited the elements of the 1905 statute (including the “immoral or scandalous” provision) with apparent approval. Indeed, the court below in that case had observed in passing that “[u]ndoubtedly public policy would prevent the registration as trade-marks of marks consisting of immoral or scandalous matter.”
True, that history is far removed from the Founding, and even from the ratification of the Fourteenth Amendment. But much of the history discussed in Vidal was not much older; as Justice Barrett observed, the Court focused primarily on “late-19th and early-20th century evidence.” Now, like Professor Ramsey, I must acknowledge that I have not done any extensive research on the history of trademark law. It is possible that the historical examples I cite above were aberrations, and that a more detailed examination would reveal that viewpoint discrimination, unlike mere content discrimination, was rare in trademark law. But I have not seen that argument made by any of the justices. Instead, the prevailing view appears to be that there is no need to look at history and tradition in cases like Iancu, presumably because viewpoint discrimination is categorically (or almost categorically) barred by the First Amendment.
But that brings me to my second, and broader, point. As I see it, the whole historical debate in Vidal—as fascinating as it is—has a sort of Hamlet-without-the-prince quality to it. While the justices tangle over exceptions to the rules of content and viewpoint neutrality, they leave curiously unexplored the basis for those rules. To be clear, as a policy matter, I fully agree that neutrality is a valuable goal for the government to pursue in regulating expression. But that is a separate question from what the Constitution requires, and major aspects of First Amendment doctrine have been subject to withering historical critiques in recent years. Maybe those critiques are wrong, or can be overridden by other considerations. History did not end in 1791, and it is quite possible that developments since the Founding have liquidated the meaning of the First Amendment such that some (even most) modern free speech doctrines are permissible interpretations of the text. Most originalists accept the need for “implementing doctrines” that flesh out underdeterminate language, and perhaps viewpoint-neutrality and content-neutrality fit the bill. But if so, it would be good to see that argument made explicitly.
As I wrote last year, originalists face genuinely difficult problems in reconciling their first-order views of the law with established precedent. Indeed, I suspect that part of what fractured the Bruen majority in Vidal is the simple fact that the slate here was so much less clean than in Bruen. In other words, the disagreement in Vidal illustrates the challenge of applying Bruen’s methodology to constitutional clauses with a much larger accretion of precedent already on the books. So Justice Barrett’s separate opinion may not reflect “second thoughts” about Bruen, as Josh Blackman argues, but rather an appreciation of the distinct circumstances the Court faced here. The same might be said for the tentative, carefully limited language in the majority opinion.
No justice can or should attempt to rewrite First Amendment law from the ground up. Even aside from stare decisis, established rules of party presentation rightly place limits on how much the justices can question widely-accepted principles of law. At the same time, I worry that a situation in which precedent governs in one area and history governs in a directly adjacent one is unlikely to work well. And in focusing narrowly on content-based trademark restrictions, I worry that the Court—majority and concurrences alike—may have missed the bigger picture. If history is relevant in some areas but not others, we need to know why that is. And to figure that out, we might need to look beyond trademark law—to try to determine (in Justice Barrett’s apt words) the “generally applicable principle” embodied in the “broadly worded text” of the Free Speech Clause.
Posted at 6:09 AM