A California lawyer’s attempt to register “Trump too small” ended Thursday when the Supreme Court launched its free speech challenge to his rejected request.
Steve Elster, the lawyer, hoped to trademark the reference to a suggestive 2016 Republican debate moment to sell on T-shirts and other merchandise.
In a majority opinion authored by conservative Justice Clarence Thomas, the Supreme Court instead sided with the Biden-era Justice Department, which upheld the federal trademark office’s refusal to accept Elster’s application.
Elster’s application was rejected under a provision of federal law that prohibits the registration of marks that identify a living person without their consent.
“Elster asserts that this ban violates the First Amendment right to free speech. We don’t think so,” wrote Thomas.
Elster’s slogan references an infamous 2016 Republican presidential debate moment when Sen. Marco Rubio (R-Florida) mocked the size of Trump’s hand. The personal retaliation came after Trump nicknamed Rubio “Little Marco” during the campaign.
“He referred to my hands,” Trump said during the debate. “If they are small, something else must be small. I guarantee there is no problem. I guarantee.”
In documentation submitted during his registration attempt, Elster wrote in 2018 that his mark was “a political commentary on the smallness of Donald Trump’s general approach to governing as President of the United States and the smallness of his approach to specific issues as President ”.
He eventually took his fight to court, winning at the D.C. Circuit Court of Appeals, claiming the restriction violated his free speech protections under the First Amendment. The Justice Department then appealed to the Supreme Court.
It follows two cases in which the high court went the other way and struck down neighboring provisions of federal law that similarly imposed restrictions on what could be trademarked. In these cases, the judges found that the provisions discriminated against the speakers’ views.
The Biden administration argued that the provision at the heart of the case in question was viewpoint neutral, insisting that the restriction need not overcome the same legal hurdle as a result. Instead, the Justice Department said the provision should be treated as a condition of a government benefit rather than a simple restriction on speech.
The Biden administration was supported by the International Trademark Association and consumer advocacy group Public Citizen. Elster was supported by the Foundation for Individual Rights and Expression, a free speech group that focuses on college campuses, and the Manhattan Institute, a conservative think tank.
This story originally appeared on thehill.com read the full story
