The Supreme Court on Thursday rejected a California lawyer’s attempt to trademark the phrase “Trump too small.”
The decision was unanimous on the bottom line but badly fractured on the rationale, with the justices arguing over whether a history-based methodology introduced in a recent Second Amendment case should be used to decide First Amendment disputes.
The case concerned a federal law that forbids the registration of trademarks “identifying a particular living individual except by his written consent.”
“We hold only that history and tradition establish that the particular restriction before us,” Justice Thomas wrote for five justices, “does not violate the First Amendment.”
Justice Sonia Sotomayor, in a concurring opinion that in places read like a dissent, was sharply critical of what she said was “the indeterminacy of the court’s history-and-tradition inquiry, which one might aptly describe as the equivalent of entering a crowded cocktail party and looking over everyone’s heads to find your friends.”
“To make matters worse,” she went on, “the five-justice majority that undertakes this tradition-as-dispositive inquiry found its friends in a crowded party to which it was not invited. That majority has drawn conclusive inferences from its historical evidence, all without any guidance from the litigants or the court below.”