Supreme Court justices across the ideological divide seemed skeptical Wednesday that a California lawyer has a free-speech right to trademark the double-entendre phrase “Trump Too Small” for use on T-shirts criticizing former presidentIn fact, Chief Justice John G. Roberts Jr. opined, ruling for Trump critic Steve Elster could make it harder for others to create their own takes about the man running to reclaim his old job.
“Presumably, there will be a race for people to trademark, you know, ‘Trump Too This,’ ‘Trump Too That,’ whatever,” the conservative Roberts told Elster’s lawyer, Jonathan E. Taylor. That could put off-limits political expression “other people might regard as important infringement on their First Amendment rights.”mostly concerned how the court could rule for the U.S.
but not impose unwanted consequences for other areas of the law, such as copyrights for book titles that use a person’s name.The bottom line, Justice Sonia Sotomayor said, was that Elster did not suffer an injury when his trademark request was denied. headtopics.com
“The question is, is this an infringement on speech? And the answer is no,” the liberal Sotomayor said, adding that the government is not telling him he can’t use the phrase, just that he can’t trademark it. “There’s no limitation on him selling it. So there’s no traditional infringement.”
The phrase draws from a locker-room taunt during the 2016 presidential campaign. Tired of Trump’s use of “Little Marco,” Sen. Marco Rubio (R-Fla.) mentioned the size of Trump’s hands during a campaign stop.“Look at those hands, are they small hands?” Trump said, raising them for viewers to see. “And, he referred to my hands — ‘If they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”phrase to criticize the size of Trump’s package of policy proposals. headtopics.com
“The government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticism embodied in Elster’s mark,” wrote Judge Timothy B. Dyk. “As a result of the President’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-President’s approach to governance, the government has no interest in disadvantaging Elster’s speech.