They didn’t get the attention received by the U.S. Supreme Court’s decisions on gerrymandering and having a citizenship question on the U.S. Census, but the nation’s top court also made two troubling rulings last week on First Amendment and Freedom of Information Issues.
First, the Court voted 6-3 to strike down the federal government’s ban on registering “immoral” and “scandalous” trademarks. Basically, that means all holds are off when it comes to a trademark name, no matter how offensive some might legitimately find that name to be.
Justice Elena Kagan cited free speech as the reason for the vote, saying “the government can’t penalize or disfavor or discriminate against expression based on the ideas or viewpoints it conveys.”
Five justices joined Kagan’s opinion — an odd array that included Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh. You don’t find those six on the same side very often.
The three who dissented — Chief Justice John G. Roberts Jr. as well as Justices Stephen G. Breyer and Sonia Sotomayor — agreed that the broad ban on immoral trademarks had to be lifted, but indicated this ruling went too far.
According to The Washington Post, Sotomayor wrote that the ruling would mean “registering marks containing the most vulgar, profane, or obscene words and images imaginable.”
The case involved a trademark dispute in which an artist named Erik Brunetti sued the government, saying it violated the First Amendment by refusing to register the trademark for his “subversive clothing line: FUCT.”
Sotomayor, according to The Post, wrote that the government would now be forced to register trademarks including “one particularly egregious racial epithet.”
That ruling came on the same day of another Court decision that added limits to the public’s access to commercial information sought under the Freedom of Information Act.
This case arose from an investigation by one of my former USA TODAY Network colleagues at The Argus Leader in Sioux Falls, S.D., Jonathan Ellis, as part of his reporting on fraud in the food stamp program. The Argus Leader had asked the Department of Agriculture for the annual amount paid by the program to more than 320,000 retailers that accept food stamps.
As the Columbia Journalism Review’s story on the case reported, “The Freedom of Information Act has always allowed private government contractors to claim an exemption on confidentiality grounds, but — under a precedent set in 1974 — contractors have had to show that disclosing the requested information would cause them competitive harm.”
Now, under the Court’s 6-3 ruling, the businesses “will be able to keep any commercial and financial information they give to the government secret at their discretion,” CJR reported.
A federal appeals court had previously ruled in favor of the newspaper and the government did not appeal further. The Food Marketing Institute, an industry group representing retailers, picked up the case and took it to an appeals court, which also upheld the Argus Leader’s request. Then, CJR reported, “the group — backed by the US Chamber of Commerce — escalated its secrecy fight all the way to the Supreme Court.”
Justice Breyer, in dissent, made a point I would have hoped all nine justices would have understood.
“The whole point of FOIA,” he wrote, “is to give the public access to information it cannot otherwise obtain.”
He’s right. Everyone — not just the media — should be concerned about any new limits to the public’s access to taxpayer dollars information.
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