SCOTUS Adds Two First Amendment Cases to Docket: Trademarks and Surcharge Laws

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court has added two notable First Amendment speech cases to its docket of constitutional law cases.

In Lee v. Tam, the Court will consider whether the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, violates the First Amendment.  Recall that the en banc Federal Circuit held the provision invalid in  In Re Simon Shiao Tam, in which the central issue was the denial of a trademark registration to "The Slants" by the applicant Simon Shiao Tam, on behalf of the Portland, Oregon "all Asian American dance rock band."  Looming large but in the background are controversies regarding the names of athletic teams that many believe are disparaging.

In Expressions Hair Design v. Schneiderman, the Court will consider a New York state law prohibiting credit-card surcharges infringes free speech.  Recall that while the expressive element in the challenge to pricing regulation is not immediately obvious, one articulation of the issue is that while "price" is not expressive, the statute actually bans an expressive label it disfavors ("credit-card discount") while permitting one a label it approves ("cash discount").  The district judge found this persuasive and held the law unconstitutional, while the Second Circuit reversed.  Moreover, similar issues have reached the Eleventh and Fifth Circuits, with a split amongst the courts.