Is Free Speech FUCT?

Jimmy Gao ‘20

“Streetwear” clothing lines have slowly become both more mainstream and more fringe at the same time. While iconic brands like Supreme and Bape have slowly made their way into the public eye upon Generation Z’s torsos, others have drifted away from the center and ventured into the world of the edgy and the experimental, including Erik Brunetti’s FUCT.

A brand founded in 1990 in Los Angeles, FUCT (which stands for “Friends U Can’t Trust”) seems like a relatively innocuous, run-of-the-mill skatewear clothing brand, except for one fact — as the United States Patent and Trademark Office (USPTO) Appeals Board puts it, its “phonetic twin” is one of the most vulgar curse words in the English language. In addition, FUCT’s anti-establishment, alternative messages on its actual clothing – featuring everything from unapologetic ripoffs of other brands to licentious graphics – make FUCT’s prominence (and notoriousness) as a countercultural force easily understood.

While the First Amendment certainly protects the right to engage in the age-old American tradition of angrily dropping f-bombs after every mild inconvenience we experience, the right to copyright and brand vulgar language certainly enters more of a grey area. After all, Brunetti was in front of the Appeals Board for a reason: the USPTO had denied his request to register FUCT as a trademark due to its “scandalous” message. In accordance with the 1946 Lanham Act, the government can deny trademarks considered “disparaging” or “scandalous” — and, citing that exact reasoning, they shut down Brunetti’s original request.

It would seem that this should be the end of the story. But a 2017 Supreme Court Case, Matal v. Tam, had just struck down one of the key provisions of the Lanham Act. In 2016, Simon Tam attempted to trademark the name of his predominantly Asian-American band, The Slants, and found himself in the same position Brunetti was in. After appealing to the Supreme Court, however, they ruled that the Lanham Act did not allow the USPTO to deny “disparaging trademarks” under the protection of free speech granted in the First Amendment. Brunetti’s case is remarkably similar — and even though a federal appeals court already ruled in favor of FUCT’s right to a trademark earlier last year, the case will likely head to the Supreme Court regardless. The highest court in the country will hear Iancu v. Brunetti this April — and the case’s implications for free speech will be groundbreaking.

John Sommer, Brunetti’s lawyer, writes that if the Scandalous Clause is found constitutional, it could set a dangerous precedent for the federal government to decide what is and is not socially acceptable. “The government could constitutionally refuse registration of copyright for scandalous works,” he warns in a Supreme Court brief. “State and local governments could effectively block unpopular organizations advancing controversial causes by refusing to grant building permits, charitable solicitation registrations, business licenses, or sales tax permits.” Organizations promoting a specific viewpoint on socially contentious issues like abortion or LGBTQ+ rights could find themselves blocked from carrying out business matters on the ground of “scandalousness”. A judge from the USPTO chose to deny FUCT a trademark due to his description of the company’s products as “nihilistic” and an “assault on capitalism, government, religion, and pop culture.” So once the Supreme Court grants the government the power to decide what can and cannot be discussed in the public sphere, they will essentially have the power to dictate morality for all Americans.

FUCT certainly toes the lines of general social acceptability – but that is where its intrinsic value lies: in its unapologetic critiques of society and its unrepentant flippancy towards everything with little discrimination. Brunetti argues that this case is monumental: “Free speech is at stake, and all speech is free speech. It cannot be selective. The moment you start shutting people down because you disagree with them or it hurts your feelings, that’s when we start going down a very slippery slope.”