On June 13, the Supreme Court decided Vidal v. Elster, a case about the constitutionality of the Lanham Act’s Names Clause. The Court held that the clause, which prohibits trademark registrations that include a living person’s name without their consent, does not violate the First Amendment’s Free Speech Clause. The decision was unanimous.
At the Supreme Court, however, unanimity in judgment does not always mean unanimity in reasoning, and Vidal is the Court’s most recent manifestation of that truism: All nine justices agreed that the clause does not violate the First Amendment, but they disagreed about why.
The Majority Opinion: History and Tradition
Justice Clarence Thomas’s majority opinion, joined in full by Justices Neil Gorsuch and Samuel Alito and in part by Chief Justice John Roberts and Justice Brett Kavanaugh, turns to history and tradition to justify the clause’s constitutionality. Typically, the Constitution prevents the government from imposing content-based restrictions on speech, which target speech because of its communicative substance. The Names Clause is content-based because it discriminates against trademarks that contain names. But according to the majority’s historical analysis, it is not presumptively unconstitutional: content-based trademark laws that are also viewpoint neutral, the opinion says, “have always coexisted with the First Amendment.” Such restrictions, then, cannot be presumptively unconstitutional.
So, when do content-based trademark laws violate the Constitution? The majority’s answer is “it depends.” In this case, history and tradition reveal a long record of restrictions against trademarks that contain names, so under the history and tradition test, the Names Clause is constitutional. Of course, the majority acknowledges that history and tradition might not always provide determinative answers—such as a trademark law that has no historical analogue. But because this interpretive method resolves the case at hand, the Court need not establish a generally applicable standard that can evaluate the constitutionality of all trademark laws. For now, the history and tradition test suffices.
Justice Barrett’s Concurrence: Reasonability
Justice Amy Coney Barrett, however, is less certain of history and tradition’s prowess. “I see no reason,” she writes, “to proceed based on pedigree rather than principle... Eventually, the Court will encounter a restriction without a historical analogue and be forced to articulate a test for analyzing it.” Barrett, in short, thinks that history and tradition might suffice for this case (although, she is unsure that the majority’s historical analysis is even accurate), but since the Court will eventually need to adopt a generally applicable standard, it should embrace—not delay—that task.
Barrett has one particular standard in mind: reasonability. So long as a content-based trademark restriction “reasonably relate[s] to the preservation of the mark owner’s goodwill and the prevention of consumer confusion,” Barrett would find it constitutional. She derives the test from an analogy that Deputy Solicitor General Malcolm Stewart presented in oral argument: Just like the government can impose reasonable restrictions on speakers’ access to limited public forums, it can impose reasonable restrictions on trademark registrations, too.
How can courts determine if content-based trademark regulations are reasonable? According to Barrett, reasonable restrictions prevent source confusion—that is, they prevent consumers from misidentifying the source of goods. And because trademarks that non-consensually include the names of living persons can undoubtedly create source confusion, she finds that the Names Clause is a reasonable regulation of speech.
Justice Sotomayor’s Concurrence: Two-Step Analysis
Like Barrett, Justice Sonia Sotomayor remains unconvinced by the history and tradition test. No justification for the majority’s reliance upon history and tradition exists, she writes, that is “grounded in our First Amendment doctrine and precedent.” Instead, the majority inexplicably performs historical analysis without guidance from the litigants or lower courts.
Consequently, Sotomayor, too, proposes a generally applicable standard that can evaluate the constitutionality of content-based trademark regulations. Her test comes directly from the Court’s precedents:
“The most straightforward way to resolve this and other free-speech challenges to trademark registration criteria is through a doctrinal framework drawn from this Court’s First Amendment precedent. The analysis should proceed in two steps. First ask whether the challenged provision targets particular views taken by speakers on a given subject. If the trademark registration bar is viewpoint based, it is presumptively unconstitutional and heightened scrutiny applies; if it is viewpoint neutral, however, the trademark registration bar need only be reasonable in light of the purpose of the trademark system.”
In short, so long as a content-based trademark restriction is viewpoint neutral and reasonably identifies and distinguishes goods for the public, Sotomayor would render it constitutional. And because the Names Clause helps consumers identify sources of goods, she finds it non-violative of the First Amendment.
Justice Kavanaugh’s Concurrence: Judicial Restraint
Kavanaugh, joined by Roberts, writes a four sentence concurrence to establish his support for all parts of the majority opinion except Part III, the section of the opinion that rejects Barrett and Sotomayor’s proposed tests. “In my view,” he writes “a viewpoint neutral, content-based trademark restriction might well be constitutional even absent such a historical pedigree. We can address that distinct question as appropriate in a future case.” In essence, Kavanaugh seems to refrain from evaluating the merits of Barrett and Sotomayor’s tests. The Court can assess various standards, he suggests, in a case that actually calls for such consideration.
Implications of Vidal
The justices’ opinions in Vidal highlight the Court’s growing disagreement over the appropriateness of the history and tradition test. Thomas, Gorsuch, and Alito, for example, continue to support this approach, while Barrett and Sotomayor reject the ability of history and practice to settle the constitutionality of trademark laws. Other justices’ views on the test are more difficult to define: Kavanaugh and Roberts support the use of history and tradition in this case, but they seem to suggest that in future cases, the Court may not need to adopt a test that relies upon history and tradition. More vaguely, Justice Ketanji Brown Jackson joined all parts of Barrett’s concurrence except Part III—the section of the concurrence that bitingly critiques the majority’s reliance upon history and tradition.
Vidal, in short, might be a 9-0 decision, but if anything, the case seems to highlight growing tensions among the justices—tensions over methods of constitutional interpretation, the proper scope of rulings, and the role of history in judicial reasoning.
Shailee Desai is a constitutional content/legal studies intern at the National Constitution Center.
