This Supreme Court term promises to be important for the First Amendment. Major decisions are expected soon on the rights of social media platforms and their users. But the free-speech fun has already begun.
The trademark case, Vidal v. Elster, was initiated by one Steve Elster, who tried to trademark the phrase “Trump too small.” The Patent and Trademark Office rejected the trademark because the Lanham Act says you can’t trademark the name of a living individual without his or her consent. In court, Elster argued that the living person rule should be held unconstitutional because applying it requires reading the trademark to ascertain if it contains the name of a living person.
The First Amendment as ratified and understood in 1791 didn’t receive any meaningful doctrinal development by the Supreme Court until 1919, when Justice Oliver Wendell Holmes initiated modern free-speech doctrine. At the time, Holmes himself acknowledged that it wasn’t clear if the framers had intended the First Amendment to do anything more than prohibit pre-emptive censorship. In other words, when it comes to free speech, originalism is useless. History and tradition is little better.
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