Sonia K. Katyal - UCLA Law Review

1646 57 UCLA LAW REVIEW 1601 (2010)
of the home, 200 it cannot “shut off discourse solely to prevent others from hearing
it” in public space. 201
The fact that “the air may at times seem filled with verbal
cacophony” is not a “sign of weakness, but of strength” for the Court due to its
constitutional commitment to freedom of expression. 202
Thus, a threshold application of Cohen to section 2(a) might suggest to a
First Amendment absolutist that the Lanham Act’s provisions fall within the
threshold of unconstitutional regulation. If the First Amendment must protect
the wearing of a shirt that says, explicitly, “FUCK THE DRAFT,” then surely, the
reasoning goes, Cohen must protect the very commodification (or federal registration)
of the phrase as a trademark. But are the situations truly analogous? The
phrase in Cohen involved pure expression in the marketplace of ideas, whereas
the same phrase in the Lanham Act context involves the federal registration of
a commodity as a brand in the marketplace of goods.
A second major consideration, again differing from Cohen, involves the
question of whether the government’s refusal to register a mark can be analogized
to Cohen’s criminal prohibition on certain types of speech. The dispute here
centers on the analytical and juridical significance one attaches to the commodification
and commercialization of trademarks, rather than the criminalization
of certain types of speech. This difference is important because it marks a
substantial nexus between the role of the state in supporting (or propertizing)
such expression, and whether the state can refuse to register offensive language.
While a refusal to register clearly affects the intellectual property rights
(and enforcement) that accompany a protected mark, it does not actually prohibit
the use or expression of such marks, raising the question of whether section 2(a)
counts as a substantial abridgement of speech or a simple denial of a subsidy.
These considerations, while complex, must also be situated within a
broader landscape that explores the appropriate trajectory that the government
should take in regulating trademarks. Yet the overall question remains:
Is the government a guarantor of certain qualities of commercial speech in
the marketplace of goods, thus necessitating greater scrutiny over contentbased
regulations, or is it a sponsor of certain types of speech in the marketplace,
thus deserving of less scrutiny? The choice between them may indeed shed
dispositive light on the constitutionality of section 2(a), as the Subparts
below suggest.
200. Id. at 21 (citing Rowan v. U.S. Post Office Dep’t, 397 U.S. 728 (1970)); Erzoznik v.
Jacksonville, 422 U.S. 205, 209 (1975) (citing Rowan, 397 U.S. 728).
201. Cohen, 403 U.S. at 21.
202. Id. at 25. See also STONE, supra note 136, at 262–72.