Slightly cooler take on Tam

I will have some more thoughts in Tam in a forthcoming amicus brief arguing that dilution is
unconstitutional.  I think this was about the least harmful affirmance the Court could have written, though for precisely that reason it leaves a lot up for grabs.  Right now, I will just
say a few things: (1) It is now even harder to distinguish between content- and
viewpoint-based regulation.  I thought
that disparagement should be deemed content-based but not viewpoint-based
because it was impossible to identify a disadvantaged “side”—whereas even in Rosenberger, one could identify a set of
religious perspectives that were excluded from university funding.  I don’t think there’s a distinctive subset of
disparaging perspectives in the same way. 
(Justice Kennedy’s rejoinder, that this logic would allow bars on
criticizing any government official, is particularly silly: because not
everyone is a member of the category “government officials,” that’s not a level
playing field at all.  Everyone is a
member of the category “persons,” Eric Trump notwithstanding.  Marty Lederman talked a bit about
this issue at Balkinization
.)  But how this
plays out in non-tarnishment/disparagement situations remains to be seen.
(2) The opinion for four Justices rejecting the “government
program” argument is hard for me to understand. It’s true to say that most of
the decisions on which the government relied almost all involved cash or their
equivalent, but the opinion does a poor job of explaining why that
matters.  The main argument is: well,
fire and police protection are services too, and you couldn’t deny them to
users of disparaging marks.  The answer
to which—completely unaddressed in the opinion—is “that’s what unconstitutional
conditions doctrine is for.”  Denying
trademark registration because a trademark is disparaging is a far cry from
denying police protection to the user of the mark.  Also, the opinion distinguishes two non-money
subsidy cases involving unions by saying they were very different.  That’s nice … why?  The opinion’s language suggests a kind of
speech/conduct distinction (“lawmakers chose to confer a substantial non-cash
benefit for the purpose of furthering activities that they particularly desired
to promote but not to provide a similar benefit for the purpose of furthering
other activities”), but not a very persuasive one, unless—again—we do an
unconstitutional conditions analysis.

(3) I’m glad the Court didn’t say anything about the
relationship between unregistrable marks and §43(a) protection, and highlighted
that it was not doing so. While I believe that the issue deserves resolution
one way or another, this was a poor vehicle for the question because so much
else was going on.  (But here’s a
question: after this decision, can the common
engage in the viewpoint discrimination entailed in denying registration
to immoral/disparaging marks by denying common law protection to such marks, as a number of states at least arguably do?)

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