Abstract

https://ssrn.com/abstract=2745016
 


 



The First Amendment Walks into a Bar: Trademark Registration and Free Speech


Rebecca Tushnet


Georgetown University Law Center

March 8, 2016

Notre Dame Law Review, Forthcoming

Abstract:     
This Essay analyzes the First Amendment arguments against §2(a)’s disparagement bar with reference to the consequences of any invalidation on the rest of the trademark statute. Ultimately, given the differences — or lack thereof — between disparagement and other bars in the statute, I conclude that §2(a) is generally constitutional as a government determination about what speech it is willing to approve, if not endorse. If the Supreme Court disagrees, it will face a difficult job distinguishing other aspects of trademark law. And these difficulties signal a greater problem: the Court has lost touch with the reasons that some content-based distinctions might deserve special scrutiny. Often, perfectly sensible and by no means censorious regulations that depend on identifying the semantic content of speech would fall afoul of a real application of heightened scrutiny, to no good end.

Number of Pages in PDF File: 44

Keywords: trademark, first amendment, registration


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Date posted: March 10, 2016 ; Last revised: April 1, 2016

Suggested Citation

Tushnet, Rebecca, The First Amendment Walks into a Bar: Trademark Registration and Free Speech (March 8, 2016). Notre Dame Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2745016

Contact Information

Rebecca Tushnet (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
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