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166 GROUNDS FOR REFUSING REGISTRATION
Even if § 1052(a) is subject to First Amendment analysis, does it pass muster because
it is the regulation of commercial speech, which is subject to a lower level of scrutiny?
Commercial speech can be regulated without violating the First Amendment if:
1. The regulated speech is related to illegal activity, or
2. The speech is misleading, or
3. The government has a substantial interest in restricting the speech,
the regulation in question directly advances that interest, and
4. The law in question is narrowly tailored to serve the governmental
interest.
The general structure of the Lanham Act’s prohibitions aimed at preventing
likelihood of confusion, deception, mistake, and false commercial statements of fact
clearly passes muster under the second prong or alternatively the third and fourth
prongs of this test. Does the prohibition of disparaging speech do so? Is SFAA v USOC
of any use here?
Is § 1052(a)’s disparagement provision content-based regulation or viewpoint-based
regulation? (The latter is subject to a much higher constitutional burden.)
Does the question of how “disparaging” is defined and determined in practice – as laid
out in the cases above, help you answer that question? Would the Redskins be able to
register the marks “The Washington Tolerants” or the “DC Anti-Discriminators?” Is
the “may disparage” standard, with no requirement of intent and no definitive
guideline on what counts as disparaging, void for vagueness?
Is Rust v Sullivan, 500 U.S. 173 (1991), of any use here? In that case, the rules
at issue were Health and Human Services regulations that forbade, among other things,
medical entities receiving governmental funds for family planning services from
discussing abortion as one of the options available to its patients. It specifically forbade
them from providing information about abortion providers, or the desirability of abortion,
even upon direct request. Justice Rehnquist, writing for the majority, rejected a First
Amendment challenge. The case was complex, but the heart of the majority’s First
Amendment analysis was that the government itself was speaking (and paying others to
speak). Having paid the piper, it could call the tune:
[Petitioners] also assert that while the Government may place certain
conditions on the receipt of federal subsidies, it may not “discriminate
invidiously in its subsidies in such a way as to ‘ai[m] at the
suppression of dangerous ideas.’” Regan, supra, at 548 (quoting
Cammarano v. United States, 358 U.S. 498, 513 (1959)). There is no
question but that the statutory prohibition [at issue] is
constitutional. . . . The Government can, without violating the
Constitution, selectively fund a program to encourage certain
activities it believes to be in the public interest, without at the same
time funding an alternate program which seeks to deal with the
problem in another way. In so doing, the Government has not
discriminated on the basis of viewpoint; it has merely chosen to fund
one activity to the exclusion of the other.
Rust v. Sullivan, 500 U.S. at 192–93. Is the government itself “speaking” through a registered
mark and choosing to “subsidize” only non disparaging speech? If so, would that
accord it greater leeway? Or does this lead to a slippery slope of remarkable steepness?