# A remarkable set of recent SCOTUS splits - is a message being sent? **URL:** \ **Category:** Politics & Elections\ **Created:** [June 18, 2019, 6:16pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701 "2019-06-18T18:16:53Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2019, 2:57pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/61 "2019-06-26T14:57:45Z")
> [@DSYoungEsq](#): > > How is it NOT speech? It may be speech to sell products, rather than speech designed to engage in social/political discourse, but it is speech, none the less. It is speech, of course, but I meant a speech issue in that a regulation denying a trademark registration because of a profanity is viewpoint neutral. And, I understand that my rule could be abused in that the government could declare that something is “profane” because it disagrees with it, so I would be very cautious in how I (as a judge) would permit a refusal to register a trademark. But, as a pure profanity or insult with no communicative value like FUCT or Nigger Hair Tobacco, I don’t see the speech issue with not registering the trademark. How bad will it go? Cum on my face? Eat my …? I’ll spare you the rest, but think of the most vulgar thing you can think of. That can be registered? For what value of speech do we need, not want but need to, consistent with the Constitution, register? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 26, 2019, 3:38pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/62 "2019-06-26T15:38:36Z")
> [@UltraVires](#): > > It is speech, of course, but I meant a speech issue in that a regulation denying a trademark registration because of a profanity is viewpoint neutral. > > And, I understand that my rule could be abused in that the government could declare that something is “profane” because it disagrees with it, so I would be very cautious in how I (as a judge) would permit a refusal to register a trademark. But, as a pure profanity or insult with no communicative value like FUCT or Nigger Hair Tobacco, I don’t see the speech issue with not registering the trademark. > > How bad will it go? Cum on my face? Eat my …? I’ll spare you the rest, but think of the most vulgar thing you can think of. That can be registered? For what value of speech do we need, not want but need to, consistent with the Constitution, register? The band “Slants” was prevented from registering their name because it was seen as derogatory. Now, if someone used that as a slur, it certainly would be derogatory. This band wanted to reclaim the word - is the government supposed to say, no they can’t? Well, that was settled in Tam. The same thing applies here. What was struck down was a content based restriction. Would I celebrate various vulgar trademarks? No way. But the principle of speech is greater than that so I would celebrate our willingness to allow that which we hate. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [June 26, 2019, 3:50pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/63 "2019-06-26T15:50:16Z")
> [@UltraVires](#): > > What about registering racial epithets? Are you cool with that? > > I’m with the 3 in the minority. I don’t think there is a First Amendment problem with not registering pure profanity that has no viewpoint at all. Yes, I’m okay with that. When you have people decide that some words are okay and some are not, in my opinion that flies in the face of the first amendment. If I want to sell Brazil nuts with a racial slur name on the package, that’s my right to do so and I would hope the marketplace would reward me with very low sales. Let the people decide which trademarks cross the line and let them vote with their dollars. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 26, 2019, 4:24pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/64 "2019-06-26T16:24:46Z")
> [@DSYoungEsq](#): > > How is it NOT speech? It may be speech to sell products, rather than speech designed to engage in social/political discourse, but it is speech, none the less. The Central Hudson test limits the First Amendment rights of commercial speech, though. > [@](#): > > Under Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980), commercial speech is less protected under the First Amendment than other forms of speech. > > Regulating Commercial Speech > > Central Hudson Test > > Under [Central Hudson](https://www.law.cornell.edu/wex/commercial_speech), there is a four-part test for whether governmental regulation of commercial speech is constitutional. > [ul] > [li]First, in order for the commercial speech to be considered as protected speech under the First Amendment, the speech must concern lawful activity, and the speech must not be misleading. If this step is met and the commercial speech is considered speech, then the court will use steps 2-4 below to determine whether the government regulation is constitutional[/li][li] Second, the alleged governmental interest in regulating the speech must be substantial[/li][li] Third, the regulation must directly advance the governmental interest asserted[/li][li] Fourth, the regulation must not be more extensive than is necessary to serve the interested expressed in step 3[/li][/ul] IANAL, but IMO those steps can clearly be used to allow FUCT but not Nigger without any changes in current law. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2019, 4:30pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/65 "2019-06-26T16:30:13Z")
> [@Bone](#): > > The band “Slants” was prevented from registering their name because it was seen as derogatory. Now, if someone used that as a slur, it certainly would be derogatory. This band wanted to reclaim the word - is the government supposed to say, no they can’t? Well, that was settled in Tam. The same thing applies here. What was struck down was a content based restriction. > > Would I celebrate various vulgar trademarks? No way. But the principle of speech is greater than that so I would celebrate our willingness to allow that which we hate. That’s one of the reasons I hesitate and would be reluctant (as a judge) to disallow a trademark. This and Redskins come to mind. When there is a genuine debate about something, the Trademark office should not be the one to resolve it. And yes, Slants communicated a message. FUCT is a silly play on a vulgarity and has no real redeeming message. Nobody is denied from communicating an idea that they want because you cannot register it, just how I can sell my tobacco without a racial slur that has absolutely nothing to do with the product. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2019, 4:31pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/66 "2019-06-26T16:31:13Z")
Gorsuch again siding with the 4 Libs and striking down federal criminal supervised release law. And I am all for this opinion. The feds are too draconian in their sentencing, keeping a person in the system forever: > **[18-96\_5i36.pdf](https://www.supremecourt.gov/opinions/18pdf/18-96_5i36.pdf)** > > 295.21 KB ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2019, 4:35pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/67 "2019-06-26T16:35:01Z")
> [@Exapno\_Mapcase](#): > > The Central Hudson test limits the First Amendment rights of commercial speech, though. > > IANAL, but IMO those steps can clearly be used to allow FUCT but not Nigger without any changes in current law. The problem with almost all of these “tests” that the Burger Court came up with is that they really solve nothing at all. You can read them as allowing FUCT but not Nigger, but I can read them as allowing Nigger but not FUCT. These tests raise more questions than answers so the test is revised and revised again to the point that the case law bears no resemblance to what we are actually trying to figure out. The Lemon test is one of the worst, but this is a close second. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [June 26, 2019, 4:36pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/68 "2019-06-26T16:36:20Z")
> [@UltraVires](#): > > Gorsuch again siding with the 4 Libs and striking down federal criminal supervised release law. And I am all for this opinion. The feds are too draconian in their sentencing, keeping a person in the system forever: > > [https://www.supremecourt.gov/opinions/18pdf/18-96\_5i36.pdf](https://www.supremecourt.gov/opinions/18pdf/18-96_5i36.pdf) Did you mean to link to a different case? That appears to be about liquor licensing. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 26, 2019, 4:43pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/69 "2019-06-26T16:43:55Z")
> [@UltraVires](#): > > It is speech, of course, but I meant a speech issue in that a regulation denying a trademark registration because of a profanity is viewpoint neutral. > > And, I understand that my rule could be abused in that the government could declare that something is “profane” because it disagrees with it, so I would be very cautious in how I (as a judge) would permit a refusal to register a trademark. But, as a pure profanity or insult with no communicative value like FUCT or Nigger Hair Tobacco, I don’t see the speech issue with not registering the trademark. > > How bad will it go? Cum on my face? Eat my …? I’ll spare you the rest, but think of the most vulgar thing you can think of. That can be registered? For what value of speech do we need, not want but need to, consistent with the Constitution, register? Funny, I believe that society can determine exactly how much of that will occur. If society refuses to buy the products, then they won’t happen. If they are commercially successful, then that makes me think that refusing to allow them is imposing the will of some small segment of society (that has more Puritan views on language) on everyone else. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 26, 2019, 4:45pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/70 "2019-06-26T16:45:41Z")
> [@UltraVires](#): > > Gorsuch again siding with the 4 Libs and striking down federal criminal supervised release law. And I am all for this opinion. The feds are too draconian in their sentencing, keeping a person in the system forever: > > [https://www.supremecourt.gov/opinions/18pdf/18-96\_5i36.pdf](https://www.supremecourt.gov/opinions/18pdf/18-96_5i36.pdf) [United States v. Haymond](https://casetext.com/case/united-states-v-haymond-6), 17-1672 (2019). A link to the correct set of opinions. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 26, 2019, 4:46pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/71 "2019-06-26T16:46:43Z")
New joke forming in my mind: How do you spell “Kennedy”? G-O-R-S-U-C-H. 😃 ---
**Author:** ![CaptMurdock](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/captmurdock/32/11736_2.png) [@CaptMurdock](https://boards.straightdope.com/u/CaptMurdock)\ **Post date:** [June 26, 2019, 4:58pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/72 "2019-06-26T16:58:01Z")
> [@KarlGauss](#): > > Assuming you simply misunderstood me, I will quote myself and ask you to re-read it and then reconsider your “anytime”, “any trappings”, “anywhere”, and “automatically” against my “some could consider”. > > Just to be crystal clear, I used “some could consider” imagining a legal challenge brought by some asshole. Do you follow? Yeah, I’m hip. I’ll concede painting a counter-argument with too broad a brush. Still, a question remains: do you feel that any trappings of Islamic faith in a cemetery are appropriate if and only if there is a person of that faith actually interred there? (Disclaimer: not a Muslim nor a Christian. Nor Jewish. Don’t even plan to be buried in a cemetery.) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2019, 5:42pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/73 "2019-06-26T17:42:14Z")
> [@DSYoungEsq](#): > > Funny, I believe that society can determine exactly how much of that will occur. If society refuses to buy the products, then they won’t happen. If they are commercially successful, then that makes me think that refusing to allow them is imposing the will of some small segment of society (that has more Puritan views on language) on everyone else. And that would be a good argument to the legislature about why we don’t need to pass such a law, but it does not address the constitutional issue. It also fails to understand democracy. If the legislature passes a law prohibiting these types of trademark registration, then it is a rule of a majority through our elected representatives, not just a handful of Puritans. I don’t think it unreasonable or unconstitutional to have a society where you take your children out shopping for school clothing and don’t have to walk past a “Cum on My Face” T-shirt which is given the same federal protection as all other T-shirts. I’m far from a Puritan, but there is no bounds of decency now which this law cannot exceed, and no matter how Puritan or laissez faire one is on this issue, there will be something that goes past what you think is proper. Further, to be successful in marketing, a company does not have to have widespread approval, just approval in its select market. For example, Nigger Hair Tobacco would not have to compete with the scale of Winston or Marlboro; it would just have to produce and sell their product in the limited markets that would buy it. These companies would not be going out of business if they enacted a good business model. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [June 26, 2019, 5:58pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/74 "2019-06-26T17:58:17Z")
> [@CaptMurdock](#): > > Still, a question remains: do you feel that any trappings of Islamic faith in a cemetery are appropriate if and only if there is a person of that faith actually interred there? Depends on the cemetary (at least). A military cemetery in a multi-faith nation honours all those who died in its wars so, yes, appropriate. A shrine to (or even acknowledgement of) the devil in an exclusively orthodox Jewish or Catholic or ‘evangelical Christian’ private cemetery? Not so much. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 27, 2019, 2:23am UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/75 "2019-06-27T02:23:08Z")
> [@UltraVires](#): > > And that would be a good argument to the legislature about why we don’t need to pass such a law, but it does not address the constitutional issue. > > It also fails to understand democracy. If the legislature passes a law prohibiting these types of trademark registration, then it is a rule of a majority through our elected representatives, not just a handful of Puritans. > > I don’t think it unreasonable or unconstitutional to have a society where you take your children out shopping for school clothing and don’t have to walk past a “Cum on My Face” T-shirt which is given the same federal protection as all other T-shirts. I’m far from a Puritan, but there is no bounds of decency now which this law cannot exceed, and no matter how Puritan or laissez faire one is on this issue, there will be something that goes past what you think is proper. > > Further, to be successful in marketing, a company does not have to have widespread approval, just approval in its select market. For example, Nigger Hair Tobacco would not have to compete with the scale of Winston or Marlboro; it would just have to produce and sell their product in the limited markets that would buy it. These companies would not be going out of business if they enacted a good business model. So your solution is not to deny them the ability to market, but simply to deny them the ability to trademark the offending language? That’s just silly. Or do you believe that the government should be able to deny the speech entirely, preclude it from being marketed at all? If so, at what point do you think the ability of the government to preclude such speech (commercial speech) ends? The constitutional issue is simple. This is speech. The First Amendment precludes the government from **abridging** freedom of speech. I find the choice of that particular verb quite instructive under the circumstances. ---
**Author:** ![thorny\_locust](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thorny_locust/32/431_2.png) [@thorny\_locust](https://boards.straightdope.com/u/thorny_locust)\ **Post date:** [June 27, 2019, 2:04pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/76 "2019-06-27T14:04:47Z")
> [@KarlGauss](#): > > A shrine to (or even acknowledgement of) the devil in an exclusively orthodox Jewish or Catholic or ‘evangelical Christian’ private cemetery? Not so much. Wouldn’t such cemeteries be on private ground? That’s not the issue; of course it’s legal to put symbols of a particular faith, and not of other faiths, on private ground. The issue is when it’s public ground. AIUI, part of the issue in the specific case seems to be that the land became public in 1961, but the cross was built in 1925. SCOTUS seem not to have been ruling on whether the cross could legally be built on public land, but on whether the municipality’s required to take down a pre-existing cross. I can see the distinction; but am worried about the size of the can of worms involved. ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [June 27, 2019, 2:17pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/77 "2019-06-27T14:17:23Z")
> [@UltraVires](#): > > I don’t think it unreasonable or unconstitutional to have a society where you take your children out shopping for school clothing and don’t have to walk past a “Cum on My Face” T-shirt which is given the same federal protection as all other T-shirts. I guess we shop for clothing at different places. ---
**Author:** ![CaptMurdock](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/captmurdock/32/11736_2.png) [@CaptMurdock](https://boards.straightdope.com/u/CaptMurdock)\ **Post date:** [June 27, 2019, 3:12pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/78 "2019-06-27T15:12:04Z")
Well, now… [Supreme Court tosses the citizenship question from the 2020 census form.](https://www.nbcnews.com/politics/supreme-court/supreme-court-tosses-citizenship-question-2020-census-forms-victory-democratic-n1014651) > [@](#): > > The court was deeply fractured on the issue, but on the section that essentially eliminated the citizenship question, the vote was 5-4, with Chief Justice John Roberts joining the four-member liberal wing of the court. > > The court’s majority said the government has the right to ask a citizenship question, but that it needs to properly justify changing the longstanding practice of the Census Department. The Trump administration’s justification was “contrived,” Roberts wrote, and did not appear to be the genuine reason for the change, possibly implying that the real reason was political. 🆒 ---
**Author:** ![CaptMurdock](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/captmurdock/32/11736_2.png) [@CaptMurdock](https://boards.straightdope.com/u/CaptMurdock)\ **Post date:** [June 27, 2019, 3:16pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/79 "2019-06-27T15:16:37Z")
On the other side of the coin: [Supreme Court allows severe partisan gerrymandering to continue](https://www.cnn.com/2019/06/27/politics/partisan-gerrymandering-supreme-court/index.html?cid=web-alerts&nsid=65293260) > [@](#): > > Washington (CNN)The Supreme Court said Thursday that federal courts must stay out of disputes over when politicians go too far in drawing district lines for partisan gain – a dramatic and sweeping ruling that could fundamentally affect the balance of power in state legislatures and Congress. > > Chief Justice John Roberts wrote the 5-4 decision for the conservative majority. > “Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is ‘incompatible with democratic principles’ … does not mean that the solution lies with the federal judiciary,” he wrote. :dubious: Really, Johnny? If the judiciary cannot fix it, who the hell is going to?? ---
**Author:** ![Fiddle\_Peghead](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fiddle_peghead/32/3506_2.png) [@Fiddle\_Peghead](https://boards.straightdope.com/u/Fiddle_Peghead)\ **Post date:** [June 27, 2019, 3:20pm UTC](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701/80 "2019-06-27T15:20:27Z")
> [@CaptMurdock](#): > > On the other side of the coin: > > [Supreme Court allows severe partisan gerrymandering to continue](https://www.cnn.com/2019/06/27/politics/partisan-gerrymandering-supreme-court/index.html?cid=web-alerts&nsid=65293260) > > :dubious: > Really, Johnny? If the judiciary cannot fix it, who the hell is going to?? Presumably judiciaries that are not _federal_. [Previous page](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701.md?page=3) [Next page](https://boards.straightdope.com/t/a-remarkable-set-of-recent-scotus-splits-is-a-message-being-sent/835701.md?page=5)