As the US awaits a verdict in Lee v. Tam – a trademark dispute challenging a section of the trademark act (15 U.S.C. 1052(a)) refusing trademark registration for marks that are deemed immoral or scandalous, and the U.S. Patent and Trademark Office’s implementation and application of those restrictions – it would benefit us to be reminded of another potential first amendment problem for a federal agency that Tam may resolve. The use of obscene or indecent “statements, designs, devices or representations” is prohibited for wine, spirits, and beer labels under their respective federal regulations. 27 CFR 4.39(a)(3) 27 CFR 5.42(a)(3) 27 CFR 7.29(a)(3) (respectively)
These restrictions on alcohol labeling are dutifully enforced by the TTB (anyone remember Dogfish’s Golden Shower?), amounting to similar viewpoint discrimination and a government imposed restriction on speech. With one caveat – while denial of a trademark keeps the applicant from enforcing certain rights, but doesn’t stop sales, denial of a label stops interstate commerce and in many states that require federal approval for state sales, it also prohibits intrastate commerce.
That’s right, the labeling restrictions carry a greater heft – basically, if you cannot achieve label approval, you cannot engage in interstate commerce, so the denial of approval based on a finding by the TTB that your label is “obscene or indecent” amounts to a ban on interstate sales based on speech – given that this carries a greater consequence, isn’t it more likely that a win for free speech in Tam will translate into greater freedom in labeling? Just a thought.
Scotusblog has the links to the amicus briefs filed in the case. Of particular interest are the persuasive and authoritative stances taken in briefs filed by the ACLU and by the Constitutional Law Professors (Floyd Abrams wrote that one) in support of finding the restrictions unconstitutional abrogations of free speech. The briefs show these types of restrictions for what they are: naked abuses of authority set on restricting speech through content-based determinations. And these arguments apply just as equally (if not more so) to claims that the authority and exercise of regulations by the TTB holding the content of alcohol labels “obscene or indecent” violate the first amendment. Should the decision in Tam be favorable, it will only be a short time before some enterprising attorney institutes a challenge to the federal labeling restrictions and their state counterparts.