Free Speech Expert on Contemporary Standards of Offensive Language

Free speech expert Roy Gutterman, Director of the Tully Center for Free Speech and professor of newspaper and digital journalism at Syracuse University’s Newhouse School, is available to discuss to recent decisions on Iancu v. Brunetti and FMI v. Argus Leader handed down by the Supreme Court of the United States.

Iancu v. Brunetti:

“Today, in Iancu v. Brunetti, the court held that a Trademark Act provision refusing trademark protection to ‘immoral or scandalous words or names violated the First Amendment.  Here, a clothing company sought to trademark a name that when pronounced sounds just like a profane and offensive curse word,” says Gutterman.

“The court found that this provision violated the First Amendment because it allowed the Patent and Trademark Office to make determinations based on viewpoints and content of the speech.  The vagueness of what would constitute immoral or scandalous and allowing the government the authority to make those vague determinations gave the government the authority to confer trademark protections based on the content of the speech.  As Justice Kagan wrote, this collided with the First Amendment,” says Gutterman.

“This was the court’s second foray into trademark protection for offensive statements.  Two years ago, in Matal v. Tam, the court held that a similar provision barring trademarks to racially disparaging names also violated the First Amendment.  Though the Brunetti opinion is also accompanied by concurring and partial dissents and  Justice Sotomayor’s standalone dissent, the majority opinion held that the government, here the Patent and Trademark Office, cannot make decisions based on viewpoints and content of speech, especially with vague standards of immoral or scandal.”

“This case really touches on contemporary standards of how we view offensive language and what role the government should have in determining what is offensive, not to mention immoral and scandalous.” 

FMI v. Argus Leader:

“Today, in FMI v. Argus Leader, the Supreme Court ruled that the government would not have to turn over a wealth of information and data about public assistance food benefits because it was deemed confidential.  This case involved a rare challenge to the federal Freedom of Information Act, requiring the court to decide how agencies should interpret the law’s Exemption 4, known as the ‘trade secrets’ exemption.  This exemption also covers certain commercial, financial or confidential information of private companies but are nevertheless part collected by the government,” says Gutterman.

“In this case, a newspaper filed a FOIA request with the U.S. Department of Agriculture for information about store-level redemption of the Supplemental Nutrition Assistance Program known as SNAP. This was public information but involved information about grocery stores. Though the government turned over some data, it withheld store-level information and the Food Marketing Institute later argued that this information was confidential and should not be released.  This case deals with how government agencies will interpret confidential information, especially information about private entities that are involved in government programs.  FMI successfully argued that releasing information about what benefits are being sought at local stores would harm the competitive nature of the grocery business,” says Gutterman.

“While there are legitimate pieces of information held by the government that should legitimately be kept confidential, the information, in this case, is not one of them. Though the court’s decision focuses on statutory interpretation of a relatively narrow area of law, the Freedom of Information Act, as Justice Breyer noted in dissent, this will deprive the public of more information, even information that may not deserve the confidential exemption,” says Gutterman.

Please contact Ellen James Mbuqe at 315.443.1897 or ejmbuqe@syr.edu.