My forthcoming article on 2(a) and the First Amendment

Rebecca Tushnet, The First
Amendment Walks into a Bar: Trademark Registration and Free Speech
, Notre
Dame Law Review (forthcoming)

 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. 

from Blogger

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