First Amendment Supreme Court Cases: 2023-2024 Term

When questions arise about whether First Amendment rights have been violated, the Supreme Court is the final authority. Its rulings interpret how these rights apply in real-life situations. 

In this post, we highlight First Amendment Supreme Court cases of the 2023-2024 term. It will be updated with additional information and analysis as the term progresses. 

Explore key First Amendment Supreme Court cases of the 2023-2024 term 

Free speech and social media are the overarching theme of the 2023-2024 Supreme Court term. 

The court will consider questions including: 

• How do you prove that you are being punished in retaliation for using your First Amendment right to petition the government? 
• Does the government violate the First Amendment when it pressures others not to do business with a company based on that company’s politics? 
• When does the government cross the line when talking to social media companies about moderating the content on their platforms? 
• Can the government regulate how social media platforms moderate content? 
• When can public officials block constituents on social media? 
• What defines an “official” government social media account? 
• Who controls the use of an individual’s name for commercial purposes? 

How do you prove that you are being punished in retaliation for using your First Amendment right to petition the government? 

The First Amendment protects our right to petition the government for a redress of grievances without fear of being punished. Gonzalez v. Trevino, which was argued on March 20, will clarify how someone who claims they were retaliated against for petitioning must prove their First Amendment right was violated.  

In 2019, Sylvia Gonzalez was a new city council member in Castle Hills, Texas, a small town with an elected mayor and a five-person city council. A major part of Gonzalez’s election campaign was a promise to push for the removal of the council-appointed city manager.  

Upon being elected, she organized a petition to remove the city manager. It quickly got 300 signatures. A resident introduced it at Gonzalez’s first council meeting, and the petition document became official government property.  

A heated public discussion lasted for two days of council meetings. At the end of the second day, Gonzalez started to gather her belongings when she was approached by the person she defeated in the election. She left her binder in her workspace and stepped away to talk to the former council member.  

While she was gone, the mayor and police captain – who is appointed by the city manager – looked at Gonzalez’s binder. They called Gonzalez back and asked her where the removal petition was. She claimed the council secretary had it. The mayor and police chief told Gonzalez it was in her own binder. Gonzalez immediately handed the petition to the mayor.  

The next day, the police department began an investigation. Gonzalez was arrested two months later under a law against anyone who “intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” Under Texas law, Gonzalez could be immediately removed from the city council. Six Castle Hills residents filed a lawsuit seeking her removal from office.  

The district attorney ultimately decided not to move forward with the case, but Gonzalez had had enough. She resigned from office and sued, saying the mayor, the police chief and a specially appointed detective conspired to violate her First Amendment rights.  

A federal district court ruled in Gonzalez’s favor. A United States Court of Appeals ruled against her. It noted a 2019 U.S. Supreme Court decision, Nieves v. Bartlett, which says that as long as police have probable cause that a crime was committed, they can arrest someone — even if it appears the arrest is in retaliation for exercising First Amendment rights. Someone can challenge such an arrest if it is for an on-the-spot crime, where officers use their discretion and may violate someone’s rights in doing so.  

Gonzalez argues that the appeals court misinterpreted the Nieves case by not allowing her to present evidence that others in her situation would not have been arrested. Even if the police had probable cause to arrest her, she says, she should be allowed to show she was singled out because she had exercised her First Amendment rights in the past. In this case, Gonzalez argues:  

• In the 10 years before her arrest, there had been 215 other arrests for violation of the government documents statute in Texas. But none involved temporary misplacement of a document (most were for making or using fake IDs).  
• There is evidence that the mayor, police chief and detective conspired to have Gonzalez arrested so she could be removed from the city council.  
• She was booked and spent a night in jail while handcuffed to a metal bench for a minor charge, even though she turned herself in. Others in that situation would have been booked and allowed to go home pending trial.  

The government officials argue that probable cause is all that is necessary in this situation where an arrest warrant is issued. The exception from the Nieves case doesn’t apply to Gonzalez. Further, even if it did apply, Gonzalez would have to demonstrate that others were not arrested even though they clearly engaged in similar actions (which Gonzalez cannot do because no such cases have ever been alleged in Texas).  

The strength of the First Amendment’s protection of petition is at stake. A ruling for Gonzalez makes it easier for someone to demonstrate that they have been retaliated against, providing a much stronger right to push back against government retaliation. A ruling for the government officials will make it easier to retaliate against government critics based on the thinnest evidence that the critics committed a crime of any kind.  

Oral argument offered little insight into the justices’ thinking. Many were sympathetic to Gonzalez, seemingly believing she was retaliated against because she spoke out against the city manager. But they also clearly struggled with how to draw a line that doesn’t open the door to a flood of lawsuits from people who will be arrested in the future.   

If the court rules for Gonzalez, it will likely require those filing retaliation lawsuits in the future — who similarly can’t provide evidence that others were arrested for the same crime because there are no arrests for that crime — to clearly demonstrate the connection between their exercise of First Amendment rights and their arrest.  

The court is equally likely to rule against Gonzalez by reasoning that there are sufficient safeguards in place to protect against outright retaliation.  

Does the government violate the First Amendment when it pressures others not to do business with a company based on that company’s politics? 

The National Rifle Association is one of the largest and most influential nonprofit organizations in the country. The NRA and its members often exercise their freedoms of speech, assembly and petition to support the rights of gun owners. The First Amendment protects them against government retaliation for expressing their support for the Second Amendment. 

For instance, it would violate the First Amendment if the Internal Revenue Service canceled the NRA’s nonprofit tax status because of its political views, or if the State of New York took away its corporate charter. 

Former New York Department of Financial Services Superintendent Maria Vullo knew this. She oversaw an agency that regulated all banks and insurance companies doing business in the state. She took a more indirect route in opposing the NRA: She went after the companies doing business with them. That included: 

• Starting investigations into two major insurance carriers who provided insurance policies to NRA members relating to the members’ gun ownership because the policies covered intentional acts and paid for criminal defense costs. Gun owners enlisted these insurance companies because the NRA was not licensed to provide insurance in New York. These investigations ended with the companies agreeing to end their relationships with the NRA. A third insurance carrier voluntarily did the same. 
• Meeting with other insurance carriers, including the NRA’s. 
• Issuing official letters to all licensed banks and insurers doing business in New York. The letters encouraged them to review their relationships with the NRA. She also publicized these letters. 

Several insurance carriers and banks ended their relationships with the NRA. Others said they were afraid to do business with the NRA because they didn’t want to attract government attention. 

In the case of the National Rifle Association of America v. Vullo, the gun group filed a lawsuit in federal district court in New York, which ruled in their favor. A United States Court of Appeals ruled for Vullo. The Court of Appeals held anything she said or did was government speech that does not violate the First Amendment or were legitimate law enforcement actions under her authority. 

The NRA acknowledges that Vullo is free to express her views but not to use her government authority to censor those she disagrees with – either directly or indirectly. It specifically cites the 1963 case of Bantam Books Inc. v. Sullivan. That case said there are three things to look for in finding indirect censorship. The NRA argues all three exist here: 

• The government official or agency has the power to pressure those third parties. 
• The government actually intends to pressure those third parties. 
• The pressure has its intended effect. 

Vullo says that she does not forfeit her own free speech rights just because she is a government employee. She is free to make statements opposing the NRA. Vullo also separates those public remarks from the government’s investigations of insurance carriers and banks doing business with the NRA. She says these investigations are a legitimate part of her job in that she was investigating actions that would violate the law regardless of who was involved. 

A ruling for Vullo would make it easier for government agencies and officials to leverage their powers to silence controversial speakers. It might also deter businesses from working with controversial companies. A ruling for the NRA might limit legitimate government oversight of regulated businesses for fear of being sued on First Amendment grounds anytime an agency takes or even threatens action.  

The Supreme Court heard oral argument on March 18 and seems willing to rule for the NRA, at least in part. The focus was less about what standard to apply and more about whether Vullo went too far in her actions. The justices appeared split in terms of throwing their support entirely behind one party or another. A majority felt she acted reasonably in regulating insurance carriers whose policies would cover criminal actions in violation of state law. But there was some concern that certain individual meetings held behind closed doors went too far into direct pressure on an insurance company to stop doing business with the NRA because of the organization’s political views.  

When does the government cross the line when talking to social media companies about moderating the content on their platforms? 

Murthy v. Missouri involves Missouri, Louisiana and five individual social media users who say their First Amendment rights were violated when social media platforms removed or downgraded their posts. The reason? They say it was because of government pressure, primarily relating to the issues of the moment such as the COVID-19 pandemic and the 2020 presidential election. In certain instances, the social media platforms even terminated some user accounts entirely (though the accounts were later reinstated). 

Social media platforms have their own free speech rights to moderate content. But the lawsuit argues that the federal government forced the platforms to do so. The suit says 67 federal government offices and employees’ unrelenting pressure and threats of potential legal action if the platforms did not comply forced the platforms to moderate specific content. 

A federal court ordered the White House, specific officials and 14 federal government offices to stop meeting with the companies, flagging content for potential moderation, communicating with social media at all about removal of content, taking any overt action to force companies to act and from following up on requests to the companies. 

An appeals court revised the order to ban only certain White House officials and a few federal government agencies from “coercion” of social media platforms to remove or suppress content. 

The federal government asked the U.S. Supreme Court to prevent this narrower order from going into effect and to hear the case. The court agreed to stay the order and heard oral argument on March 18. 

The states argue that the government is effectively censoring certain social media posts and users through its unrelenting pressure that ranges from mere encouragement to implicit and explicit threats of legal action. They argue that the government and social media companies are conspiring to censor posts and terminate users in violation of those users’ First Amendment rights. 

The federal government counters that it takes more than mere conversations to violate the First Amendment. They say it does not violate the First Amendment for a social media company to grant a government request. It only violates the First Amendment if it is clear that the company really had no other choice, something that occurs only in limited circumstances (and that the government says did not occur here). 

The case will determine the extent to which the government can advise social media platforms in their efforts to moderate harmful content. 

Government officials and journalists have long held conversations about the danger of publishing certain facts, opinions or stories. But these have generally been voluntary conversations. The right of free speech limits the government from coercing a media outlet into publishing or not publishing, broadcasting or not broadcasting, moderating or not moderating. This enables the media to present a variety of facts and opinions on matters of public concern without the government dictating what is true and false, acceptable and unacceptable. 

The court’s ruling has the potential to disrupt this balance. A ruling for the federal government might invite greater intrusion into social media moderation and potentially – though admittedly unlikely – further intrusion into the editorial decisions of print and broadcast journalists. A ruling for the states and social media users is a win for free speech because the platforms will retain their ability to moderate content free from government coercion but, depending on how they engage in this content moderation, could also lead to a rise in unchecked misinformation online. The court will also have to balance its ruling in this case with its rulings in two other cases argued on February 26: Moody v. Netchoice LLC and Netchoice LLC v. Paxton. Both cases look at the ability of states (Florida and Texas in these cases) to prevent social media platforms from removing content and speakers. 

Oral argument before the court indicates a ruling in favor of the Biden administration, with a clear majority of the justices questioning whether any of the actions were “coercion” – or are anything other than business as usual when it comes to communication between the federal government and social media platforms or news outlets. The question is how the court will resolve the case in the administration’s favor. Likely outcomes are:  

• Saying the states and individuals had no “standing” to bring the lawsuit in the first place because any impact on their accounts or posts cannot be traced to pressure the administration exerted on social media platforms. In other words, the platforms would have acted against them regardless of whether the government asked them to.  
• Throwing out the injunction approved by the United States Court of Appeals for the Fifth Circuit because it is still too broad and prohibits the government from lawful conversation with social media platforms – at which point the states and individuals could file another suit seeking a narrower injunction from the courts.  
• Retaining the prohibition against “coercion” while defining that term more precisely to distinguish it from government “encouragement,” which, even when strenuous or persistent, seemed to be something the justices would allow. It’s hard to tell how the justices would differentiate between the two, but it most likely would involve the government making a concrete threat of legal or regulatory action if the platform doesn’t comply – something the justices seemed skeptical happened here.  

Can the government regulate how social media platforms moderate content? 

On Feb. 26, the U.S. Supreme Court heard arguments in two cases of state laws that would prevent social media platforms from restricting a user or post based on the viewpoint being expressed. 

What’s at stake? The future of social media as we know it. 

The social media platforms are private businesses that can moderate their content without violating the First Amendment. The First Amendment, in fact, protects them from the government compelling their speech in any way, which includes being forced to maintain content or carry speakers when the platforms don’t want to. The states that passed these laws, Florida and Texas, and those supporting them argue that there are valid reasons for regulating social media. If the court accepts these arguments, it opens the door to widespread regulation of social media, such as limiting or preventing minors from accessing these platforms or banning a platform from operating entirely. 

Moody v. Netchoice LLC looks at Florida Senate Bill 7072, which prohibits social media platforms from banning political candidates or “journalistic enterprises,” and from deleting or minimizing the visibility of posts by or about them. It also says that a social media platform cannot change its terms of services more than once every 30 days and must allow users to opt out of algorithms that prioritize certain content, allowing them to experience a chronological feed. Among other provisions, the law also requires companies to provide a user with detailed notice of any ban or any minimized visibility of content. The law applies to platforms with more than 100 million monthly users or $100 million in gross annual revenue, which includes large platforms like Facebook, Instagram, YouTube and X but not small platforms like Rumble, Parler and Truth Social. 

Netchoice LLC v. Paxton looks at Texas House Bill 20, which prohibits social media platforms from “censoring” users or posts or preventing users from seeing content based on that user’s “viewpoint” as expressed in that post or earlier posts on the platform. Under the law, a website is “censoring” a user when it takes any action to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” The law also requires these platforms to notify users anytime their content has been removed and explain why. Platforms must allow the user to file a complaint alleging a violation of the law and appeal the removal of their content. And it requires platforms to file regular reports with the government about how they moderate content. It applies to platforms with more than 50 million active users in the United States in a calendar month. So, like Florida’s law, it applies to the bigger, more general platforms like Facebook and X but not the niche platforms. 

Federal courts are divided on whether the laws violate the First Amendment. A federal district court ruled that the Texas law violates the First Amendment. But the United States Court of Appeals for the Fifth Circuit reversed that decision, upholding the law because the state has an interest in regulating what it called the social media platforms’ “censorship” of speech. Meanwhile, a federal district court in Florida declared that SB 7072 violated the platform’s First Amendment rights, and the Fifth Circuit agreed. 

Netchoice, an internet trade association that challenged the laws, argues that social media platforms have free speech rights that include the right to share the speech of its users. The government cannot tell Facebook what content to carry any more than it can tell Fox News or The New York Times what to print, the group says. Netchoice argues the laws violate the First Amendment because they require those platforms to favor certain users over others. (Legislators in each state said that the laws were intended to protect conservative speakers). Netchoice also points out that the laws apply only to larger platforms. 

The states argue that their statutes do not violate the First Amendment because they regulate economic activity, not speech. They say they are primarily anti-discrimination efforts designed to ensure all speakers are treated equally. Finally, they argue that social media regulations are consistent with the First Amendment, just like regulations on common carriers like telephone companies because they are open to everyone and essentially required to engage in communication on matters of public concern. 

If the social media platforms win, social media companies will continue to be able to freely moderate content without government interference. They will retain autonomy to make decisions about their terms of use and, as long as they follow their own rules, be free to decide which posts to allow and which to delete, how to prioritize or minimize content, and whether they will terminate users who consistently violate the rules. 

If the state laws are upheld, everything is upended. Social media platforms would be significantly restricted in their content moderation efforts. Many say the likely result will be a surge of misinformation and disinformation around important issues, all kicking off in an election year, and that offensive, hateful and harmful content would flood social media. Platforms would likely have to prove the content of a post falls outside the protection of the First Amendment to delete it or kick someone off their platform. 

During oral argument, the justices were skeptical of the states’ position. At least six of the nine justices indicated that social media platforms are protected by the First Amendment because they are engaged in speech. In addition, those platforms are more like newspapers than like telephone companies or other common carriers. These justices also disagreed with the notion that the platforms are “censoring” speech. Censorship only occurs when the government restricts speech, not when private companies do. 

But it’s unclear how the justices will handle the present challenge to these laws. The court seemed hesitant to just declare the laws unconstitutional on their face and strike them from the books entirely. This would require finding that the law clearly violates the First Amendment no matter how it is applied. It’s quite possible that instead the justices prohibit the states from enforcing these laws while sending the cases back to the lower courts for more fact finding to determine whether there is any situation in which the laws might be applied without violating the First Amendment. 

If that happens, settle in for years of court proceedings around these laws, including through appeals of lower court decisions and challenges by platforms who claim the laws are being applied to them in unconstitutional ways. 

Can public officials block constituents on social media? If so, when? 

Two First Amendment Supreme Court cases decided March 15 relate to when a government official can block the people they serve from following and posting comments on an official’s social media accounts. 

The court clarified when a public official is engaged in “state action” via their own, non-official social media account but did not decide whether the officials in these cases met that standard. 

The outcome of these cases may reshape officials’ use of social media, especially at the state and local level where they are more likely to also be neighbors (and Facebook friends) with their constituents. 

Rulings for the constituents could force greater social media interaction between officials and members of the public. It could also mean that those officials explicitly create two social media personas – one for official business and one for personal business – or simply refuse to have any. 

Rulings for the officials would mean that they could move more of their public communications to their social media accounts and refuse to interact with people who disagree with them there. 

The First Amendment means the government – federal, state or local – can’t limit freedom of speech or petition. So, the government can’t block people on social media. But private people can block others on social media. 

Determining when a government official blocking someone is a “state action” when the First Amendment applies or a private action when it does not can sometimes be difficult. After all, government officials have a private life; they aren’t always on the job. 

Courts tend to look at whether a government representative was acting in an official capacity or not. Social media has made this distinction ever harder. 

MICHIGAN CITY MANAGER BLOCKS COMMENTS: LINDKE V. FREED 

Case in point: James Freed was a private person when he created a Facebook profile that he later converted to a “page” to allow more followers. He chose “public figure” as the category for his page. 

In 2014, Freed became the city manager of Port Huron, Mich. He included the city contact information on his Facebook page. He posted a mix of personal and professional content, including posts about how the city was handling COVID-19. 

Port Huron resident Kevin Lindke didn’t agree with the city’s handling of the pandemic. So, he exercised his First Amendment rights to speech and petition by negatively commenting on Freed’s posts. Freed deleted many of these comments and eventually blocked Lindke from following him on Facebook. 

Lindke sued, alleging a violation of his First Amendment rights. District and appeals courts both ruled in favor of Freed. They said he was not acting as a government official when he banned Lindke from his personal Facebook page. 

Lindke turned to the Supreme Court. He argues that courts should assume that public officials are acting in a government capacity from the start because of the potential for abuse of our First Amendment rights. He says whether an official is using actual authority shouldn’t matter as much as the impression that they are. 

Freed responds that he didn’t operate his Facebook account because the city told him to. In fact, he had the account before he became city manager. He didn’t spend city funds to maintain it or have staff update it. He simply posted city-related content to his personal page on occasion. 

CALIFORNIA SCHOOL OFFICIALS BLOCK PARENTS ONLINE: O’CONNOR-RATCLIFF V. GARNIER 

The government officials in this case had separate social media accounts. One was solely dedicated to their official government duties. But they weren’t required to have an official page, and they weren’t authorized to speak on behalf of the government through that page. 

Michelle O’Connor-Ratcliff and T.J. Zane each ran for positions on the Poway (California) Unified School District board in 2014. They had private Facebook accounts for family and friends. They created separate Facebook and Twitter accounts to promote their campaigns for office. Upon election, they converted those campaign accounts to official accounts used to communicate important school-related information and get input from parents. 

Christopher and Kimberly Garnier, two local parents, frequently posted negative comments to these official accounts. O’Connor-Ratcliff and Zane deleted or hid many of these comments and used a “word filter” to automatically block certain comments. They finally blocked the Garniers from posting to these official pages. 

The Garniers sued, just like Kevin Lindke. But this time two courts ruled the officials’ blocks were state action. The courts said in creating these specific accounts and devoting them exclusively to discussion of their school board duties, they had created a public forum for speech. 

The school board members argue that they are not engaged in state action even through these official accounts. They say the accounts are not authorized, funded or operated by the city, school board or school district. They say the pages are essentially ongoing campaign pages. They claim that no reasonable person would mistake them for official government accounts. 

The Garniers argue that express authorization was not required for these to be official government accounts, especially when so much public business is conducted online. In this case, the fact that the officials had separate accounts with no personal content whatsoever is evidence supporting the Garniers’ claim. 

COURT CONSIDERATIONS ON SOCIAL MEDIA BLOCKS 

These cases were argued separately on Oct. 31, but there was a significant overlap between the two. The justices seemed to be deciding which of the two standards used by the lower court in these cases should apply across the board. 

In one option, a social media account would be an official public account if it is part of the public official’s duties set forth in law and used under authority granted by law. This is a standard set by the appeals court in the case of the Michigan city manager. 

Another option is a more flexible approach that looks at the general appearance of the account. This is the standard adopted by the appeals court in the case of the California school board members. 

In opinions issued on March 15, the court took the former approach via a unanimous opinion written by Justice Amy Coney Barrett in Lindke v. Freed. 

Justice Barrett acknowledged that state action is easy to spot in some cases. When a police officer arrests you, they are acting on behalf of the state.  But these cases involving public officials acting as private citizens are less clear. There’s a good reason for this: Public officials are not always “on the clock.” They are entitled to be private citizens and express their own opinions, free from government infringement of their First Amendment rights. Though the court did not explicitly reach this conclusion (because it didn’t answer the question of whether the act of blocking someone on social media infringes their First Amendment rights), forbidding public officials from blocking people from their private social media accounts would likely violate their First Amendment rights. 

The issue is especially unclear when it comes to social media, where a public official uses their personal social media account to communicate a wide variety of information from the clearly personal to matters of public concern. 

The court said the best way to separate personal from public is through the two-step process used by the United States Court of Appeals for the Sixth Circuit in deciding this case for James Freed. To be state action, the public official must:

1. Have authority to speak on the government’s behalf. 
2. Be using that authority when speaking on social media. 

The first part requires more than having the ability to speak for the government. It must be part of the public official’s job to do so. In other words, as city manager, Freed must be authorized to speak on the subjects at issue in the posts he blocked Kevin Lindke from seeing. (And if he blocked Lindke generally, he must unblock him and only delete Lindke’s comments on posts in which Freed was engaged in state action under both parts of this two-part test.) Whether the public official has the authority to speak on a given issue depends on the facts involved. That authority most likely comes from laws, regulations and working rules of the government. But it can also come from custom and usage that has been allowed over time. 

The second part is almost entirely dependent on context. If a public official designates a social media account as “official” or fills it with references to their government position, they’re more likely to be engaged in state action when they make statements on matters of public concern related to their job (as long as they are authorized to do so). On the other hand, the account is more likely to be presumed private if they clearly mark it as a private account. But the court was quick to note that self-designation is not conclusive, it just creates a very strong presumption that could be overcome based on the actual content being posted and the tone with which it is written. A post that appears to announce a government policy is more likely to be “state action” than a post commenting on that policy or other public issues. 

The court stopped short of saying whether James Freed himself was engaged in state action, instead sending the case back to the lower courts to make that decision. And, because the United States Court of Appeals for the Ninth Circuit used a different standard in deciding O’Connor-Ratliff v. Garnier, the court issued a short opinion that simply sent that case back to the lower courts for further consideration using this newly adopted standard. 

Does the First Amendment protect registering “Trump Too Small” as a trademark? 

Steve Elster filed a trademark registration for the term “Trump Too Small” to be used on clothing. The slogan originated from a comment about then-candidate Donald Trump’s hands during a 2016 presidential primary debate. 

The United States Patent and Trademark Office rejected this application. It said federal trademark law prohibits any trademark that includes a specific living person’s name without that person’s written consent. Elster had no connection to or permission from Trump. 

Elster appealed, and the appeals court said that the trademark law violates the First Amendment. It relied, in part, on two recent Supreme Court decisions that struck down on First Amendment grounds bans on “disparaging marks” and on “immoral” or “scandalous” ones. 

In the 2017 case of an application to register the band name The Slants (Matal v. Tam) and the 2019 case of an application to register the clothing line FUCT (Iancu v. Brunetti), the court held, in part, that trademarks are the registrant’s speech, not the government’s. Proposed trademarks are fully protected against the trademark office accepting or rejecting applications based on the message conveyed. 

The court found trademark rules did unconstitutionally discriminate against certain trademark applications based on viewpoint, because disparaging marks were rejected while honorific marks were accepted, and immoral or scandalous marks were rejected while those that did not offend were accepted. 

This is where the “Trump Too Small” Supreme Court case picks up. 

The trademark office says the law against using another person’s name does not turn on whether the person is portrayed in a positive or negative light. It argues that such a viewpoint neutral condition is not a restriction on speech, but rather a condition to get a government benefit. For this reason, the trademark office says it only needs to show a “reasonable basis” for the restriction, which is easy to justify: It is necessary to avoid misappropriation of someone’s name or likeness. That’s important, particularly when someone wants to make money from their own likeness. 

Elster counters that the limit on trademarking names is not actually viewpoint neutral. Practically, it only restricts critical views since no one would ever consent to someone else using their name in a negative way. A law that favors some viewpoints over others almost always violates the First Amendment. 

Elster also argues that protecting someone’s right to control the use of their name and likeness may be compelling, but he says prohibiting all uses of that name goes too far and prohibits the sort of political speech he says he is engaged in here. 

A decision favoring the trademark office could limit would-be critics of famous people, including politicians. Without a trademark registration, those critics could face lawsuits from the very people they seek to criticize. 

A decision favoring Elster will restrict the trademark office from rejecting trademark applications based on their content and will protect speech like criticism and parody. 

COURT CONSIDERATIONS ON TRADEMARKING NAMES 

The Nov. 1 oral argument of this case indicated the justices are leaning toward a decision in favor of the trademark office. At least seven of the nine justices questioned whether the rejection of this trademark application restricts free speech at all. Elster can still make and sell merchandise with the “Trump Too Small” slogan. He just can’t get the government to prevent others from doing the same. 

The justices further questioned whether requiring consent to use someone’s name in a trademark discriminates on the basis of viewpoint. They noted a lack of evidence to support Elster’s claim that this unfairly targets negative use of a living person’s name or likeness as part of a trademark. The justices also questioned whether Donald Trump (or anyone else) would consent to someone else making money from their name or likeness even in a positive way. 

Kevin Goldberg is First Amendment specialist for the Freedom Forum. He can be reached at [email protected].