WASHINGTON, D.C.—DKT Liberty Project, a civil rights organization founded by Philip D. Harvey, who's better known to the adult world as the founder of Adam & Eve, has signed onto an amicus brief to the U.S. Supreme Court supporting the attempt by clothing manufacturer Erik Brunetti to be able to trademark his clothing line called "FUCT"—a mark which has been refused by the U.S. Patent and Trademark Office (USPTO). Other amici joining DKT in the brief include the libertarian Cato Institute, the libertarian/conservative Americans for Prosperity, political satirist/commentator P.J. O'Rourke, and former ACLU president Nadine Strossen.
As AVN has previously reported, Brunetti's attempt to gain trademark status for FUCT was denied under a provision of the 1947 Lanham Act, which sets the criteria for the verbiage regarding which trademarks are registerable—and specifically excludes language which the USPTO deems to be "disparaging" or "scandalous."
However, in 2017, the U.S. Supreme Court, in a decision in favor of the Asian-American rock band called The Slants, struck the "disparaging" clause from the Act and allowed the band to trademark itself. The Brunetti case challenges the "scandalous" language prohibition, since the USPTO decided that "FUCT" sounded too much like the "scandalous" (which has been interpreted to mean "vulgar") sexual term "fucked." As AVN noted, a favorable decision in Brunetti could open up a number of trademark possibilities to the adult entertainment industry.
The question presented in the DKT amicus brief is simple: "Does the government get to decide what language is 'scandalous'?" Certainly, nothing in the U.S. Constitution gives the government that power; to the contrary, the Constitution denies Congress, which passed the Lanham Act, the power to "abridge[e] freedom of speech, or of the press."
But beyond the philosophical free speech issue, the amici point out that trademark denial may not only adversely affect the business applying for the mark, but also suppresses certain speech by "creat[ing] a practical disincentive to their use by rendering certain government benefits unavailable."
"The Scandalous Marks Clause violates the First Amendment in the same way that the Disparagement Clause did," the amici argue. "As the Court explained in Tam, 'powerful messages can sometimes be conveyed in just a few words.' By denying trademarks to words deemed 'scandalous,' the government is dictating permissible and impermissible vocabulary. And when our freedom to articulate our ideas is curtailed, our freedom to express those ideas is also curtailed." [Citations removed here and below]
The amici go on to cite examples of how censorship of "naughty" words has affected everything from Shakespeare's plays to the Holy Bible: "Compare 1 Kings 14:10 King James Version ('Therefore, behold, I will bring evil upon the house of Jeroboam, and will cut off from Jeroboam him that pisseth against the wall') with 1 Kings 14:10 New American Standard Bible ('therefore behold, I am bringing calamity on the house of Jeroboam, and will cut off from Jeroboam every male person')."
"The fact is, if an author wants to write the way people talk, that author is going to have to include profanity," the amici argue. "The average contemporary English speaker uses 80 to 90 swear words per day."
The brief delivers a wide-ranging discussion on the utility of using "swear words" to express not only emotions but simply to drive home political and social points in dialog and argument, citing myriad academic sources and critical works that have examined the issue. In fact, the brief includes an entire section titled "Profane Language Is Beneficial for Science and Health," noting that "Scientists have observed that patients with damage to the left hemisphere of their brain can lose 'the ability to construct syntactically correct sentences[], while retaining the ability to curse.' ... This phenomenon means that in some cases, curse words become the last link between loved ones and a friend or family member dealing with cognitive loss."
Importantly, the brief also features a section titled, "Distaste for 'Vulgar' Language Often Arises from Prejudice," noting, "Not only does punishing profanity harm expression, it also carries unjustified value judgments about class and culture. ... Much of the distaste for obscenity comes from a notion that peppering speech with colorful words belies a lack of education, a small vocabulary, or both."
"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,'" the brief states, quoting Melissa Mohr's Holy Sh*t: A Brief History of Swearing (2013).
But perhaps the brief's most important point is contained in its final section, "The Government Cannot Objectively Determine What Language Is 'Scandalous'" After noting that the USPTO claims to use "a substantial composite of the general public" to determine if a mark is immoral or scandalous, the brief states, "Remarkably, it has apparently never actually asked us. Even the FCC, which deals with this problem more often than the PTO, has never taken a single survey. ... The answer to these dilemmas is that the government should get out of the business of defining what is offensive or scandalous. It is simply impossible to find one cultural 'spectrum' or 'ranking' of offensive words that everyone will agree on even within a single country."
Of particular interest to the adult community is the brief's statement, "More recently, the documentary This Film Is Not Yet Rated (IFC Films 2006) undertook a survey of MPAA ratings and found that movies with scenes involving gay sex were much more likely to incur an 'NC-17' rating than movies with comparable scenes of straight sex, and that scenes emphasizing female sexual pleasure were rated more harshly than scenes of male pleasure. Whether intentional or not, vague standards such as 'scandalous to the community' invite this type of biased treatment. They especially risk special punishment for the expression of minority groups that are seen as outside the norm."
And let's face it: What's more "outside the norm" than XXX content—except, of course, it isn't!
All in all, this brief is an excellent defense of free sexual expression, and is well worth a read. It can be found here.
