Business

‘Trump Too Small’: Supreme Court Hearing Case Today About T-Shirt Criticizing Ex-President

November 2, 2023

Topline

The Supreme Court heard oral arguments Wednesday in a case over a T-shirt that mocked former President Donald Trump, as justices consider whether trademarks can be granted that criticize public officials.

Sen. Marco Rubio (R-Fla.) (left) and then-candidate Donald Trump argue during the Republican … [+] presidential debate on February 25, 2016 in Houston, Texas.

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Key Facts

The court will hear Vidal v. Elster, which concerns Steve Elster’s attempt to trademark the phrase “Trump Too Small” for use on a t-shirt, referencing a comment Sen. Marco Rubio (R-Fla.) made during a presidential debate in 2016, in which he joked about the size of Trump’s hands and added, “And you know what they say about guys with small hands.”

Elster’s t-shirt criticizes Trump’s political agenda, saying on the back of the shirt that “Trump’s package is too small” on a variety of political issues, but his trademark was initially denied under the Lanham Act, a federal law that bans trademarking anything that “consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.”

An appeals court then allowed Elster’s trademark, agreeing with his argument that rejecting it violated his First Amendment rights, leading the federal government to ask the Supreme Court to take up the case.

The government argues the law doesn’t infringe on freedom of speech and instead just means that people can’t benefit commercially off of someone else without their consent, calling it “a reasonable, viewpoint-neutral condition” that “is consistent with the First Amendment.”

The court will specifically consider whether the law on prohibiting trademarks for living individuals without their consent violates the First Amendment when said trademark “contains criticism of a government official or living figure,” meaning the court could make it easier for more trademarks to be issued that criticize public officials and other living persons if they side with Elster.

What To Watch For

The court will hear oral arguments in the case Wednesday, though it’s unlikely to issue a ruling for at least a few months, sometime before the court’s term ends in June 2024. Justices appeared skeptical of Elster’s argument during oral arguments on Wednesday, with Justice Neil Gorsuch noting the long history of trademark restrictions against living people and Chief Justice John Roberts noting that a rush for people to trademark phrases about Trump or others could cut off other people’s political expression by giving the trademark holders rights to a critical phrase. “The question is, is this an infringement on speech? And the answer is no,” Justice Sonia Sotomayor said, as quoted by Reuters.

What We Don’t Know

What other Trump-related cases the Supreme Court will hear this term. While they’re not on the court’s docket yet, the Supreme Court is widely expected to consider other cases related to the ex-president’s 2024 run and legal issues in the coming months, including his effort to have criminal charges thrown out in the federal case over him trying to overturn the 2020 election, and challenges seeking to disqualify Trump from the presidency under the 14th Amendment. “Are they going to be forced to address those cases? I think the answer is yes,” George Washington University law professor Paul Schiff Berman told Politico. “Whether the Supreme Court wants to get involved in issues relating to the election, it’s going to be very hard to deny … every one of these Trump-related appeals that we expect to see happening.”

Surprising Fact

After Rubio made the comment about Trump’s hands during the 2016 debate, Trump then responded a few days later on a different debate stage. “Look at those hands. Are they small hands? And he referred to my hands if they’re small, something else must be small,” Trump said. “I guarantee you there’s no problem. I guarantee you.”

Tangent

The Motion Picture Association (MPA) filed an amicus brief in the case on behalf of major studios like Paramount and Disney, which notes the case could have an impact on how their products depict living people. The government argues in the case that the Lanham Act as it currently stands protects people’s “right to publicity,” which bars the “appropriation for commercial purposes of a person’s identity without his consent,” the MPA noted. That’s relevant to the group because studios continually face lawsuits from people who are depicted in films or believe they’ve inspired characters, and the MPA argued that while such lawsuits have been unsuccessful, they want the court to address the relationship between the right to publicity and the First Amendment so there’s more clarity on it going forward. “The MPA has a strong interest in ensuring that the First Amendment provides robust protection against right-of-publicity claims seeking to silence its members’ creative expression,” the group wrote.

Key Background

Elster applied for the “Trump too small” trademark in 2018, and an examining attorney for the U.S. Patent and Trademark Office initially rejected the application because “the use of the name ‘TRUMP’ in the proposed mark would be construed by the public as a reference to Donald Trump,” which isn’t allowed without Trump’s written consent. An appeals board upheld that decision before Elster took the dispute to federal court, leading to the ruling in his favor. The case marks the latest in a series of First Amendment-related trademark disputes that have come before the Supreme Court. The court ruled in 2017 that a trademark statute that prohibited anything that “disparage[s]” people was unconstitutional, in a challenge brought by a band called “The Slants,” and in 2019 the court struck down a different aspect of trademark law that barred “immoral” or “scandalous” materials. In its most recent term, the court ruled against a dog toy that was made to look like a bottle of Jack Daniel’s whiskey—calling itself “Bad Spaniels”—finding the toy constituted trademark infringement despite its “lighthearted, dog-related alterations.”