Choosing the Consequences of Tam and Brunetti

Abstract

In Matal v. Tam and Iancu v. Brunetti, the Supreme Court did something it has never done before – namely apply strict First Amendment scrutiny to trademark law. This is a big deal. Many have argued, to relatively little effect, that intellectual property laws, like trademarks, raise serious free speech problems. It is therefore significant news for the Court to declare portions of the Lanham Act unconstitutional not once, but twice.

Like all Supreme Court decisions that break new ground, Tam and Brunetti raise questions about what comes next. In this Essay, I consider some of those possibilities and conclude that the consequences of Tam and Brunetti depend on whether future courts think the cases imply the rewriting of broad First Amendment doctrines or the opening of a new and subtle understanding about intellectual property and the First Amendment. Both of these options will require change to well-established features of existing First Amendment law.