Iancu v. Brunetti
Iancu v. Brunetti
18-302
IN THE
___________
ERIK BRUNETTI
RESPONDENT.
QUESTION PRESENTED
Does the government get to decide what language is
“scandalous”?
ii
TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i
TABLE OF AUTHORITIES ....................................... iii
INTEREST OF AMICI CURIAE ................................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT........................................................... 3
ARGUMENT ................................................................ 7
I. “VULGAR” LANGUAGE PLAYS AN
IMPORTANT ROLE IN SOCIETY........................ 7
A. Vulgar Language Is Necessary for Full and
Authentic Expression ...................................... 7
B. Distaste for “Vulgar” Language Often Arises
from Prejudice ................................................ 14
C. Profane Language Is Beneficial for Science
and Health ..................................................... 17
II. THE GOVERNMENT CANNOT OBJECTIVELY
DETERMINE WHAT LANGUAGE IS
“SCANDALOUS” .................................................. 22
A. There Can Be No Single Standard for
Offensiveness in a Pluralistic Society ........... 22
B. The Lines Censors Draw Are Often Biased,
Irrational, or Naïve ........................................ 26
CONCLUSION .......................................................... 30
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Matal v. Tam, 137 S. Ct. 1744 (2017) ..................... 3, 4
Minn. Voters Alliance v. Mansky,
138 S. Ct. 1876 (2018) ............................................ 22
United States v. One Book Called “Ulysses”,
5 F. Supp. 182 (S.D.N.Y. 1933) .............................. 10
Statutes
15 U.S.C. § 1052(a) ...................................................... 4
Higher Authority
1 Kings 14:10 (King James Version) ........................... 9
1 Kings 14:10 (New American Standard Bible).......... 9
William Shakespeare, Twelfth Night ........................ 28
Other Authorities
Adam Mansbach, Go the Fuck to Sleep (2011) ......... 12
Andrea Millwood-Hargrave, Delete Expletives?,
Ofcom (Dec. 2000), https://bit.ly/2Fr3PZF ....... 23-24
Bastien Bonnefous, Manuel Valls Droit dans Ses
Bottes Face à Sa Majorité, Le Monde
(Sep. 15, 2014), https://lemde.fr/2U1zCtQ ............ 25
Benjamin K. Bergen, What the F: What Swearing
Reveals About Our Language, Our Brains, and
Ourselves (2016) ............................................. passim
”Bloody,” Slang and Its Analogues,
(Farmer & Henley, eds., 1890) ......................... 14-15
iv
INTRODUCTION AND
SUMMARY OF ARGUMENT
Here we go again. Just two years ago, the Court
unanimously told the Patent and Trademark Office
(PTO) that it can’t punish trademarks just because
some people find them “disparaging.” Matal v. Tam,
137 S. Ct. 1744, 1751 (2017). Not having learned its
lesson, the PTO now insists it can punish trademarks
just because some people find them “scandalous.”
2 See, e.g., Petrox, Scalia at NYU Law: When Libs and Free
Speech Implode, DailyKos, Apr. 12, 2005, https://bit.ly/2OlyeNg.
4
ARGUMENT
I. “VULGAR” LANGUAGE PLAYS AN
IMPORTANT ROLE IN SOCIETY
A. Vulgar Language Is Necessary for Full
and Authentic Expression
“In 1973, Yugoslav philologist Olga Penavin pre-
dicted that swearing would simply go extinct with the
spread of socialism. In a socialist utopia, there would
be no conflict, and thus no need for swearwords, she
reasoned.” Mohr, supra, at 254. Sadly for Dr. Penavin,
however, the oft-predicted triumph of socialism is still
running behind schedule. Society remains firmly fixed
in the real world, a world in which conflict, passion,
and high emotions are an inherent part of life. And so
long as such a world exists, it will remain impossible
to fully convey the full range of our thoughts and feel-
ings without a vocabulary that includes swearing.
The government argues that eliminating “vulgar”
words from speakers’ vocabularies does nothing to
hamper their ability to express any and all ideas. In
that telling, “scandalous marks are ineligible for reg-
istration not because they are thought to convey offen-
sive ideas, but because such marks reflect an offensive
mode of expressing whatever idea the speaker wishes
to convey.” Pet. Br. 20. (cleaned up, so to speak).
This is akin to arguing that the government could
ban most words of Latinate origin (such as encounter,
putrefy, and educate) without any harm to expression,
since those words each have Germanic equivalents
(such as meet, rot, and teach). Such a ban would obvi-
ously hinder expression. As any author knows—and
even many lawyers sense—expressing an idea well re-
quires finding just the right word, and writing with a
8
Scenes like that give the lie to the notion that pro-
fanity is purely the domain of those with small vocab-
ularies. “When things are so grim . . . ordinary words
fail even the most seasoned detectives. It’s not that
[the detective characters] don’t know more words—
there just isn’t anything else to say but fuck, or Aw,
fuck, or motherfuck.” Adams, supra, at 134.
In sum, stereotypes about those who use profanity
are just that: stereotypes. In fact, studies have shown
that using profanity is positively correlated with both
intellect and honesty. See, e.g., Kristin L. Jay & Timo-
thy B. Jay, Taboo Word Fluency and Knowledge of
Slurs and General Pejoratives: Deconstructing the Pov-
erty-of-Vocabulary Myth, 52 Language Sciences 251
(2015); Gilad Feldman, et al., Frankly, We Do Give a
Damn: The Relationship Between Profanity and Hon-
esty, 8 Social Psycological & Personality Science 816
(2017); see also Dave Maclean, Intelligent People Are
More Likely to Swear, Study Shows, The Independent,
(Aug. 28, 2017), https://ind.pn/2jzdi6Y.
If there is an element of truth to the identification
of obscenity with lower classes, it arises not from a lack
of education but instead from the fact that obscenity in
literature and music are the most effective words “for
resisting ‘the system’ and the dominant culture that
expects certain kinds of ‘good’ language and behavior.”
Mohr, supra, at 248. As the linguist Tony McEnery ar-
gued, “[b]roadly speaking, the discourse of power ex-
cludes bad language, the discourse of the disempow-
ered includes it.” Tony McEnery, Swearing in English:
Bad Language, Purity and Power from 1586 to the Pre-
sent 10 (2006). Or as Lenny Bruce put it even more
pointedly: “If you can’t say ‘fuck,’ you can’t say ‘fuck
the government.’” See Fuck (ThinkFilm 2005).
17
survey. “As far as anyone can tell, the FCC hasn’t ac-
tually done the legwork to find out what people really
think about words—what’s profane, in the present cul-
ture, in the present time.” Bergen, supra, at 10.
But a single survey would not solve the more fun-
damental problem, which is that there cannot be one
consensus standard of “scandalous language” in a het-
erogeneous society. Just look at the nations that actu-
ally have attempted such surveys. In New Zealand, for
example, the Broadcasting Standards Authority con-
ducts a regular survey asking whether citizens would
find certain words always acceptable on radio and tel-
evision, never acceptable, or acceptable in only some
contexts. The results show a wide range of opinions. In
other words, no matter how a government chooses to
categorize any given word, it will always go against the
values of a significant portion of the population. For
example, the most recent survey found that 15 percent
of the population viewed the word “God” as never ac-
ceptable for broadcast television, while 15 percent—
probably not the same 15 percent—found “fuck” to al-
ways be acceptable. See N.Z. Broad. Standards Auth.,
Language That May Offend in Broadcasting, June
2018, https://bit.ly/2CuLdY3. That same study found
that offensive standards vary across ages. For exam-
ple, while only 18 percent of those 25–34 found “Jesus
Christ” to be unacceptable in a TV drama, 36 percent
of those 65 and over still found it unacceptable. Id. And
on several words, the society was as evenly divided as
could be, with a virtual 50/50 split on the question
whether “mother fucker,” “chink,” or “faggot,” were
sometimes acceptable. Id. This lack of consensus is not
peculiar to New Zealand. A similar study in Great
Britain likewise “shows rampant disagreement.” Ber-
gen, supra, at 13 (citing Andrea Millwood-Hargrave,
24
this case, Fuct. See Pet. App. 40a. Of course, any con-
sumer who reads the word FCUK “realize[s] the mis-
ordering [of letters] only after fuck has registered.”
Wajnryb, supra, at 187. The PTO cannot seriously ar-
gue that the fig leaf of misordering makes any real
change, yet decisions on which brands make the cut
can seemingly turn on such meaningless differences.
Further, although censors may be trained to spot
“obvious” profanity, they are often oblivious to double-
entendre or codewords. “[W]hen Matt Stone and Trey
Parker made their feature-length South Park film . . .
the title was originally South Park: All Hell Breaks
Loose, but the MPAA categorically rejected the word
Hell, so the film was retitled with a plausibly more of-
fensive double entendre: South Park: Bigger, Longer
and Uncut.” Bergen, supra, at 220.
Shakespeare himself took delight in wordplay by
means of homophones, suggesting to his audience var-
ious naughty words without ever having to outright
say them. See, e.g., Twelfth Night act 2, scene 5 (Mal-
volio: “By my life this is my lady’s hand. These be her
very C’s, her U’s and [sounds like “N”] her T’s and thus
makes she her great P’s.”). Shakespeare’s subtle
spelling game slipped past the watchful Bowdler, who
printed it unaltered. Bowdler, supra, at 73.
PTO examiners have in some cases shown similar
naiveté when it comes to approving and denying
marks, such as one examiner who considered “Cum To-
gether” to be acceptable because it’s merely a parody
of the Beatles. See Carpenter & Garner, supra, at 351.
Conversely, in some cases, government censors
have been over-eager to find a naughty word when a
mark was likely intended to be innocuous. In initially
29
CONCLUSION
It is precisely in the sterile environment of govern-
ment agencies where profanity might seem the most
offensive and worthless. After all, in swearing as in all
else, context is everything. “What makes a dirty joke
inappropriate or unfunny depends on the joke and the
context (the office versus the local pub). . . . [O]ffen-
siveness and humor depend on cultural contexts.” Jay,
Why We Curse 19. But it is exactly this context-de-
pendency that can make examiners and other officials
lose sight of the fact that transgressive and risqué lan-
guage has its necessary place.
The government’s attempt to define and punish
scandalousness is both misguided and unconstitu-
tional, so the Court should affirm the Federal Circuit.
Respectfully submitted,
Thomas Berry Ilya Shapiro
768 N. Wakefield St. Counsel of Record
Arlington, VA 22203 Trevor Burrus
CATO INSTITUTE
1000 Mass. Ave. N.W.
Washington, D.C. 20001
(202) 842-0200
[email protected]