SCOTUS Watch: Brunetti wins his clothing line trademark ‘FUCT’


The U.S. Supreme Court started the day with a dozen cases yet to be decided this week. The Court announced four decisions today, and also that it would be back on Wednesday for another decision day. I would expect at least one additional decision day.

It was another day in what would appear to be at first glance odd bedfellows in opinion splits.

The First opinion is a 5-4 decision in US v. Davis, by Justice Gorsuch joined by Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kavanaugh dissents, joined by Justices Thomas and Alito; Justice Roberts joined all but one part of the dissent. This is a case about the definition of the phrase “crime of violence,” for purposes of a federal criminal prosecution for using a gun during such a crime. The court holds that Section 924(c)(3)(B) is unconstitutionally vague. Davis is another in a series of cases finding statutory standards like “crime of violence” to be too vague. Justice Kavanaugh’s dissent is significantly longer than Justice Gorsuch’s opinion. The Chief Justice declined to join the portion of Justice Kavanaugh’s dissent that relies on constitutional avoidance.

The second opinion is a decision in Food Marketing Institute v. Argus Leader Media, by Justice Gorsuch joine by Justices Roberts, Thomas, Alito, Kagan, Kavanaugh. Justice Breyer filed an opinion concurring in art and dissenting in part, joined by Justices Ginsburg and Sotomayor. The decision of the Eighth Circuit is reversed and remanded. The court holds first that the Food Marketing Institute has standing to appeal because disclosure of the contested data would cause its members some financial injury in the highly competitive grocery industry. The court holds next that when commercial or financial information is both customarily and actually treated as private by its owner and is provided to the government under an assurance of privacy, the information is “confidential” for purposes of Exemption 4. The Court is very critical of the statutory interpretation in a 1974 D.C. Circuit case that had been the leading authority on this question for a long time. So once again questioning precedent and stare decisis.

Justice Breyer, joined by Justices Ginsburg and Sotomayor, would have adopted a standard that would result in more disclosures to the public — because they would have required a showing of harm. The liberals show at least some sympathy with the 1974 D.C. Circuit’s rule, but Justice Kagan simply joined Justice Gorsuch’s opinion.

Justice Gorsuch’s opinion in Food Marketing Institute still leaves open a substantial FOIA Exemption 4 question: “Can privately held information lose its confidential character for purposes of Exemption 4 if it’s communicated to the government without assurances that the government will keep it private?”

The third opinion is a 6-3 decision in Iancu v. Brunetti, by Justice Kagan joined by Justices Thomas, Ginsburg, Alito, Gorsuch and Kavanaugh. Justice Alito filed a concurring opinion, Justices Roberts and Breyer filed opinions concurring in part, and dissenting in part. Justice Sotomayor filed an opinion cuncurring in part and dissenting part, also joined by Justice Breyer. This is the case in which the justices were considering whether the ban on “immoral or scandalous” trademarks under the Lanham Act violates the First Amendment. Erik Brunetti had tried unsuccessfully to register the trademark “FUCT” for his clothing line. The Court holds that the Lanham Act’s prohibition on registration of “immoral or scandalous” trademarks violates the First Amendment. The Federal Circuit’s decision is affirmed.

Justice Kagan, showing her usual style: “According to Brunetti, the mark (which functions as the clothing’s brand name) is pronounced as four letters, one after the other: F-U-C-T.  See Brief for Respondent.  But you might read it differently and, if so, you would hardly be alone.  See Tr. of Oral Arg. 5 (describing the brand name as “the equivalent of [the] past participle form of a well-known word of profanity”).”

Justice Alito files a concurring opinion in part to make clear that… “Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be “immoral” or “scandalous” can easily be exploited for illegitimate ends. Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas.”

The fourth opinion is a 6-3 decision in Dutra Group v. Batterton, by Justice Alito joined by Justices Roberts, Thomas, Kagan, Gorsuch and Kavnaugh. Justice Ginsburg dissents, joined by Justices Breyer and Sotomayor. This is an admiralty case in which Christopher Batterton was working on a ship owned by Dutra Group when a hatch cover blew open and crushed his hand; he sought not only compensation for his injuries but also punitive damages. The Court holds that a seaman cannot recover punitive damages on a claim of unseaworthiness.

In the Orders List today, the court granted certiorari on three Affordable Care Act appeals which are to be consolidated for hearing next term: Maine Community Health Options v US (18-1023), Moda Health Plan, Inc. v US (18-1028), and Land of Lincoln Mutual Health v. US (18-1038). This appeal involves the “risk corridors” programs under the Affordable Care Act, which mandated that for the first three years of the Act the federal government “shall pay” mathematically determined amounts to health insurers based upon a statutory formula to induce them to participate in health insurance exchanges and to reduce the premiums they otherwise would charge. These health insurers participated, performing their obligations under the terms of the bargain, but the Republican-controlled Congress stiffed them for payment by an appropriations bill rider. In other words, they got “FUCT.”

The issues are essentially: (1) Can an appropriations rider whose text bars the agency’s use of certain funds to pay a statutory obligation, but does not repeal or amend the statutory obligation, nonetheless be held to impliedly repeal the obligation by elevating the perceived “intent” of the rider above its text, and the text of the underlying statute? and (2) Where the federal government has an unambiguous statutory payment obligation, does the presumption against retroactivity, i.e., the “cardinal rule” disfavoring implied repeals,  apply to the provisions of an appropriations rider that is claimed to have impliedly repealed the government’s obligation?

For textualists, as in today’s opinions above, the answer in this case would appear easy and obvious: the insurers are entitled to payment.

H/T SCOTUSblog live blogging of opinions.