In a case involving patent and trademark restrictions, the U.S. Supreme Court, in the case of Iancu v. Brunetti, addressed a First Amendment issue with implications for public employers. In a 6-3 decision the court invalidated the Patent and Trademark Office’s (“PTO”) bar on registering trademarks for “immoral or scandalous” content. The PTO was acting under this provision when they refused to register Mr. Brunetti’s trademark for his clothing line FUCT; given the phonetic similarities to other obscene language in combination with the “extreme nihilism” and advocacy for “anti-social” behavior contained on his website. Mr. Brunetti challenged this decision, arguing the bar violated his First Amendment rights to freedom of speech by being viewpoint-based. A provision is viewpoint-based, and therefore an unconstitutional violation of a person’s First Amendment rights, when it prohibits content based on subject-matter rather than viewpoint-neutral provisions which are universally applied to all content, regardless of subject matter.
The Supreme Court ultimately agreed with Mr. Brunetti and invalidated the bar, holding the dictionary definitions as well as PTO’s historic application of the bar indicated it was viewpoint-based. The Court’s concern was the restriction was a form of viewpoint (content) discrimination and therefore, violated the First Amendment.
This decision is instructive in the employment setting for public entities because it emphasizes the requirement that any restriction on First Amendment rights must be content neutral. As we are rapidly approaching the 2020 presidential election season, employers likely will have to deal with these limitations in determining how and when public employees may be allowed or restricted when they desire to express their candidate preferences. In addition to the First Amendment, this question implicates areas of policy such as political activity restrictions for classified employees, social media and discipline. Public employers should review these policies to ensure compliance with legal requirements and best practices.
The attorneys at FDAR regularly advise clients on First Amendment and other constitutional issues, including defending lawsuits in state and federal court. If you have a specific scenario or complaint in regard to these issues, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.