Streetwear Gets Its Day at the Supreme Court

If you asked someone with a passing familiarity with streetwear to describe the brand “Fuct,” they would probably say it’s an iconic ’90s skate brand from California. Appearing before the Supreme Court on Monday morning, the Department of Justice’s Deputy Solicitor General Malcolm Stewart described Fuct as “the equivalent of the past participle form of the paradigmatic profane word in our culture.” This somewhat tortured longhand used to refer to the brand elicited a few smirks among the usually solemn justices perched above the packed marble-columned courtroom. And despite the court police ready to shush noisemakers, a few chuckles broke out in the wooden pews as the nine robed justices—and the arguing lawyers—continued to perform linguistic gymnastics to avoid mentioning “Fuct,” the brand at the center of a closely-watched free speech case: Iancu v. Brunetti.

Erik Brunetti

Alessandro Barthlow

The DOJ’s lawyers were not unfamiliar with The Roberts Court. Respondent Erik Brunetti (Fuct’s founder) and his lawyer, John Sommer, on the other hand, were not the usual suits at the counsel table. Brunetti, the graffiti bomber and skater who started Fuct in 1990, showed up to court in a pair of metallic gold cowboy boots and his signature wide-brimmed felt hat. (Bowing to court etiquette, he took the hat off once inside). Sommer’s day job, meanwhile, is as chief counsel to Stüssy. As Brunetti put it in an Instagram Story posted on his way to D.C., the case could just as well have been called The Heads v. The Feds.

The Feds’ argument? That it is the government’s responsibility to refuse registration of trademarks that consist of “scandalous” material, as exemplified by Fuct. Brunetti counters that this violates his First Amendment rights to free speech.

As far as clothing-related free speech cases heard by the Supreme Court, Iancu v. Brunetti is lower stakes than, say, Cohen v. California (1971), where the court overturned the conviction of Paul Robert Cohen, who had been arrested in a California courthouse for wearing a jacket that said “Fuck the Draft.” Still, it made for curious courtroom theater, where nobody uttered the brand name at the heart of the case. And if the government’s appeal is rejected, Brunetti could have broad implications for the kinds of brand names that receive trademark protection.

The possibility of an offensive-trademark free-for-all appeared to be a main concern for Chief Justice Roberts, Justice Alito, and Justice Breyer, all of whom appeared skeptical that the government should have to promote—through federal trademark protection—potentially offensive marks. Justice Breyer, who typically votes with the Court’s liberal-leaning wing, appeared pained at the possibility that opportunists would sweep in to trademark racial slurs, while Justice Alito—along with his fellow conservatives—appeared unconvinced that “Fuct” or its phonetic equivalent represents a point of view, which would afford it protection under the First Amendment.

But the justices reserved some of their most pointed questions for the government, noting that federal application of the law has been woefully inconsistent. During Stewart’s remarks, as Justice Thomas leaned back in his padded leather chair and read from a tiny case material booklet, Justice Gorsuch expressed his skepticism of the government’s ability to define a rational line of scandalousness, noting that the US Patent and Trademark Office’s track record of approvals was like the “flip of a coin.” As a court artist in the press seats sketched Brunetti’s black beard and shoulder-length hair, Justice Gorsuch occasionally glanced around as if to ask, What are we doing here? Justice Kagan asked that same question a short while later when trying to determine what exactly the government wanted them to do with the imperfect law, if it wasn’t to be overturned.

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