Yesterday’s post concerned the U.S. Supreme Court’s holding in Matal v. Tam, 2017 U.S. LEXIS 3872 (June 19, 2017) that the “disparagement clause” of the Lanham Act violates the Free Speech Clause of the First Amendment. As far as most legal commentators were concerned, that was the one and only headline holding of the case. Before addressing the constitutional question, however, the Court tackled a more workaday, but nonetheless interesting question: Does the Lanham Act’s “disparagement clause” reach marks that disparage racial or ethnic groups?
Some my find it baffling that this would be a question at all – aren’t racial and ethnic groups the mostly targets of disparagement? The disparagement clause, however prohibits the registration of trademarks that disparage any “persons, living or dead.” 15 U. S. C. § 1052(a). Thus, the question becomes whether “persons” includes only natural or juristic persons. The Supreme Court concluded:
A mark that disparages a “substantial” percentage of the members of a racial or ethnic group, Trademark Manual §1203.03(b)(i), at 1200–150, necessarily disparages many “persons,” namely, members of that group.
Why interpret an unconstitutional statute?
I find the Supreme Court’s excursion into the meaning of “persons” nonetheless to be baffling. The Court found the disparagement clause violates the Free Speech Clause of the First Amendment. So why bother interpreting an unconstitutional statute? Justice Samuel Alito’s explanation for the exercise is the importance of avoiding premature adjudication of constitutional questions. The historic justification for putting off constitutional questions is to keep the courts from being entangled in vague and abstract questions. However, when the government is seeking to limit speech, any delay, particularly on the part of the Supreme Court, weakens First Amendment rights. Had the Supreme Court, for example, reached a conclusion that the disparagement clause did not reach groups, then the Patent & Trademark Office would have been free to enforce the statute with respect to natural and juristic persons. As a result it could have been years or even decades before the Supreme Court addressed the constitutionality of the statute. All the while, the people’s free speech rights would have been unconstitutionally curtailed.