SCOTUS to decide who is or isn't "effed"

NBC News decided to have a bit of fun with their headline while covering a case coming before the Supreme Court. They describe it as the court hearing “an unusual case about the f word,” but it’s not the F-word you’re thinking of. At least not exactly.

What they’re talking about is a company launching a brand of clothing for the skateboarding community with a provocative attitude back in 1990. The name they chose for their brand was intended to raise eyebrows and it did just that. They settled on the name “Fuct.” (You can figure that one out for yourselves.) The problem came when they tried to obtain a trademark for the brand and the government turned them down. Now the Supremes will finally have the chance to decide if their freedom of speech was being infringed.

When Eric Brunetti and Natas Kaupas, a phenomenal Southern California skateboarder, launched a line of streetwear in 1990, they wanted a brand name that would match the subversive, anti-establishment theme of their clothing.

So they coined a single four-letter word to appear on their T-shirts, hoodies, jackets and shorts. But when Brunetti sought legal protection for the company’s name, the federal government said it could not issue a trademark for the word he chose: Fuct.

The U.S. Supreme Court will soon decide whether that refusal violated Brunetti’s freedom of speech.

The Patent and Trademark Office invoked an ancient rule instructing them to not grant trademarks to names that are “scandalous or immoral.” Given what the name “Fuct” was clearly designed to sound like, one might be able to make that case. But given how lax regulators have become in terms of naughty words these days, particularly on cable television and subscription services such as Netflix or HBO, can the Patent and Trademark Office really justify being this prudish over a homonym of one of George Carlin’s Seven Dirty Words?

Part of the argument that the plaintiffs are making is based on free speech, but I’m not sure that comes into play here. Nobody from the government has attempted to stop them from producing and selling their clothing line. They’re just refusing to offer them trademark protection. We can find a parallel to this situation in the 2017 case brought by the musical group The Slants. In that one, the government tried to argue that the band’s name was racially offensive and also that the granting of a trademark represented “government speech” that was immune from First Amendment questions, so they could deny the application if they liked. The Supreme Court rejected both arguments resoundingly.

That’s not to say that a perceived racial slur will be treated the same way as something that sounds like one of the Seven Dirty Words, but there’s clearly a parallel. Then again, we have a bit more conservative court now than we did two years ago, so it could still go the other way.