The Supreme Court Must Balance Competing First Amendment Rights In Duel Cases Involving Profanity, Religious Freedom, And Sexual Orientation

​The freedom of expression, freedom of religion, and the First Amendment face the scrutiny of the Supreme Court thanks to two cases involving the use of profanity and the right of business owners to refuse a service over religious objections.  Depending on how the politically conservative-leaning Court rules, First Amendment rights could be radically expanded and/or the ability of government to establish reasonable restrictions on individual behavior impaired, which could prevent from government safeguarding the vulnerable and protecting their rights.  The cases could also produce rulings that simply refine current precedent or erroneously restrict the freedoms of speech, expression, and religion.  Given the significant role that First Amendment freedoms and protections play in securing America’s democracy and shaping American culture, these First Amendment cases are certain to have a far-reaching impact.

​The US Patent and Trademark Office had denied clothing designer Erik Brunetti a trademark for his “Fuct” streetwear brand, because of its obscene nature.  Current US trademark laws allow the Trademark Office to deny trademark requests based on the “immortal” and “scandalous” nature of words and symbols.  In his lawsuit, Brunetti, who originally filed his trademark application in 2011, claimed the legal provisions in question infringed on his First Amendment right to freedom of expression.  In 2017, Brunetti achieved victory in a federal appeals court, but the Trump Administration appealed to the US Supreme Court.  On the surface, the ability of the US government to deny US citizens trademark protections based on the message of a product is censorship.  Furthermore, the notion that the US government can refuse trademark protections based on whatever public officials deem too immoral and too scandalous appears to completely contradict the text and spirit of the First Amendment.  
 
The legal justification for imposing trademark restrictions based on immoral and scandalous messages is a desire to prevent the US government from endorsing material that could encourage harm to others and/or offend the general population.  The US government needs to offer balanced protections to all citizens.  Profanity is, obviously, relatively benign, but how the US government handles it tests whether or not current US laws actually guarantee the First Amendment rights and protections that all US citizens are entitled to.  Profanity is mildly offensive, so people are less inclined to defend government action against it.  It is not, however, so offensive that people are willing to overlook blatant government overreach.  Something like pornography, in contrast, is offensive enough to attract public support for government restrictions.  In the case of pornography, the culture of pornography tends to demean women, so there is actual harm to a group of citizens.  Issuing a trademark for pornography would, therefore, most likely constitute an example of the US government endorsing material that degrades the rights of others.  In the case of profanity, the results of a harm test would likely be a solid fail.  US trademark law should, therefore, be refined to restrict harmful messages, not immortal and scandalous messages.
 
In the case of Melissa and Aaron Klein, the State of Oregon, which requires businesses to provide “full and equal” services to all customers without regard to race, sex, religion or sexual orientation, imposed a $135,000 fine when the bakery owners refused to make a wedding cake for a lesbian couple.  Forced to shut down their business, the Kleins sued Oregon for violating their First Amendment right to free religious expression.  Because the case involves State law, instead of Federal law, and business, the Supreme Court must consider the Tenth Amendment, Fourteenth Amendment, and Commerce Clause implications.  The legal complexities of the case aside, a failure of government to protect the lesbian couple in question from discrimination would essentially nullify their Constitutionally guaranteed rights.  Compelling the Kleins to produce artistic expressions that violate their religious beliefs would be an example of government undermining the First Amendment rights of individuals.  
 
Beyond the issue of sexual orientation, business entities cannot be allowed to discriminate based on the prejudices of their employees or shareholders.  Businesses operate under the Commerce Clause and play such a critical role in society that empowering them to discriminate would nullify the Constitutional rights of individuals who belong to disfranchised groups.  The fact the Kleins work for their own business should not, however, be enough for the State of Oregon to override their religious freedoms.  To balance the competing interests of government, State laws should require businesses to provide “full and equal” services by affording employees the option to refuse to do certain work based on their religious objections.  In the case of businesses, such as sole proprietorships and partnerships, where the owners are the only ones capable of providing an offending service, there should be an exemption.  Such an approach would allow government to protect the rights of all individuals.  Government must always seek to offer the greatest amount of protection for the freedoms of all citizens and avoid restricting the rights of any individual.  The Brunetti and Klein cases demonstrate how difficult that can be when there is a need to balance the competing rights of all citizens.  They also show that it is possible.