Recently, the Supreme Court decided Matal v. Tam, a trademark case involving a “dance-rock band” (the Court’s words, not mine) named “The Slants.” The band submitted a trademark application for its name to the Patent and Trademark Office, which denied it because the name was insulting, in violation of a decades-old provision of trademark law. That provision is aptly called “the disparagement clause,” or, as Justice Alito put it, the “happy-talk clause.” The band then sued the PTO, and ultimately the Supreme Court decided that the disparagement clause violated the First Amendment, which protects happy and non-happy talk alike.
While the bottom-line conclusion of Matal is an important trademark-law development, it’s the Court’s broader discussion of the expressive value of trademarks that’d I’d like to focus on. The Court’s discussion provides important support for the long-standing (and long-disputed) argument that “money is speech.”
Trademarks Have First Amendment Repercussions
Matal correctly states that “trademarks often have an expressive content” along with their commercial purpose, which is to identify the company that made a particular good (or the band that recorded a particular song). While “federal law regulates trademarks to promote fair and orderly interstate commerce,” trademarks “do not simply identify the source of a product or service.” They “go on to say something more, either about the product or service or some broader issue.” The Court gives just some of the countless examples of expression via trademark: a pro-life group uses “Abolish Abortion” as its mark, and Planned Parenthood has trademarked “I Stand With Planned Parenthood”; Anti-capitalists have reserved “Capitalism Is Not Moral, Not Fair, Not Freedom,” while Pro-capitalists don “Capitalism Ensuring Innovation.” (Those latter two groups, at least, need better marketing divisions, but you get the point.) And here’s another timely example: many companies incorporate rainbows in their logos during June. Expressive, no doubt—yet still easily furthering trademark’s commercial purpose.
As this discussion shows, the commercial purpose of trademarks does not erase a company’s ability to express itself through its marks. (“Breakfast of Champions” obviously communicates something, even though General Mills adopted the slogan to sell more Wheaties.) Moreover, “[c]ompanies spend huge amounts to create and publicize trademarks that convey a message,” and yet their right to convey such messages is protected by the First Amendment.
So if spending the money necessary to create expressive trademarks doesn’t remove those trademarks from the First Amendment’s protection, it follows that the government could not limit the amount of money spent to create trademarks, since that would be a limit on free expression. In other words, Matal provides support for the principle that spending money on protected First Amendment expression is itself protected by the First Amendment. Or, to shorten the phrase to the common refrain, “money is speech.”
The Constitutional Argument Behind ‘Money Is Speech’
It’s important to revisit and double-check perennial arguments like “money is speech”—precisely because it is contentious (see the debate over the Citizens United decision for proof). The First Amendment protects a person’s right to speak and express himself or herself in the public square; that much is clear from the text: “Congress shall make no law . . . abridging the freedom of speech.”
The First Amendment must also prohibit the government from limiting the amount of speech the person makes, or, rephrased, the number of times a person speaks. For example, say the government limited how many times a person could share “Vote for Smith” on Facebook—say in the interest of preventing oversharing. Once someone shared the phrase the maximum number of times, the law would prevent the speaker from speaking his preferred message on the next desired occasion. That’s an abridgment.
But what if the government attempted to circumvent this First Amendment limitation by simply recasting its censorship laws as regulations of money spent on speech? Say the government passed a law limiting the New York Times to a printing budget equal to the average local paper. This lower budget would directly result in a lower circulation than the Times and its readers desire, just as effectively as a law simply curtailing the Times’ circulation outright. That is, there is no difference between the government limiting the number of papers the Times may print and the government limiting the number of dollars the Times may spend on printing. Both directly abridge speech. Therefore, if the First Amendment is to have any meaningful force at all, it must prevent the government from limiting the amount of money a speaker spends on speech. Therefore, money is speech.
So the Supreme Court in Matal reiterated that our commercial and expressive activities are often inseparably linked, such that the government’s attempt to limit one results in a limitation of the other. But, thanks to the First Amendment’s prevention of such limitations, the net effect of this link is actually more freedom, so long as our commitment to the First Amendment is secure.