Sonia K. Katyal - UCLA Law Review

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political ramifications—irreconcilable, nonrivalrous, and yet contradictorily
self-referential.
A third extension of Crenshaw’s work is more analytically normative, as
opposed to descriptive. The concept of intersectionality might help us in exploring
the ideal role for the government to play in regulating the hybrid character
of trademarks as mixed public and private goods, and as mixed commercial
and expressive speech. Just as the law’s regulation of race affects its intersection
with gender, the law’s regulation of the realm of private goods—the commercial
realm of trademarks—affects its intersection with the realm of public goods like
information. How should the government navigate the world of the commercial
marketplace, as distinct from the marketplace of ideas? Should trademarks be
regulated by the same standard in both contexts, or by a standard that recognizes
how trademarks occupy the intersection of both marketplaces? Should it aim to
be viewpoint-neutral, as in the context of noncommercial speech, or contentsensitive,
as in the trademark context? Just as Crenshaw valuably exhorted
scholars to take into account how each category affected the other (how the
regulation of race affects gender, and vice versa), this Part argues that the law
must also take into account the intersection of a trademark’s commercial and
expressive facets, how each impacts the other, and how the law’s governance
alters the interaction between a trademark’s economic value and social meaning
in the marketplace.
A. Mediating the Marketplace
The marketplace of ideas and the marketplace of goods are both founded on
the simple principle that they are inherently truth-seeking institutions. 183
Yet the
question of whether the marketplace—of goods or of ideas—actually leads to
truth or to distortion has led to multiple opposing viewpoints, often leaving the
proper role of government an open-ended question. 184
Writing in 1974, Ronald
Coase mused that if the government favored noninterference in the marketplace
of ideas, then why not take the same approach in the marketplace of goods? 185
For Coase, the government’s inconsistent approach suggested, at the very least,
183. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he best
test of truth is the power of the thought to get itself accepted in the competition of the market . . . .”).
184. For a few of these perspectives, see C. Edwin Baker, Scope of the First Amendment Freedom of
Speech, 25 UCLA L. REV. 964, 974–81 (1978); Kent Greenawalt, Free Speech Justifications, 89 COLUM. L.
REV. 119, 135–38 (1989); Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE
L.J. 1, 1–6.
185. See R.H. Coase, The Market for Goods and the Market for Ideas, 64 AM. ECON. REV. 384 (1974);
see also Tamara R. Piety, Market Failure in the Marketplace of Ideas: Commercial Speech and the Problem That
Won’t Go Away, 41 LOY. L.A. L. REV. 181 (2007).