No.

18-302

IN THE

___________

ANDREI IANCU, UNDER SECRETARY OF COMMERCE FOR

INTELLECTUAL PROPERTY AND DIRECTOR,
UNITED STATES PATENT AND TRADEMARK OFFICE,
PETITIONER,
V.

ERIK BRUNETTI
RESPONDENT.

On Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit
__________

BRIEF FOR THE CATO INSTITUTE,

DKT LIBERTY PROJECT,
AMERICANS FOR PROSPERITY,
P.J. O’ROURKE, AND NADINE STROSSEN AS
AMICI CURIAE SUPPORTING RESPONDENT
__________

Thomas Berry Ilya Shapiro

768 N. Wakefield St. Counsel of Record
Arlington, VA 22203 Trevor Burrus
CATO INSTITUTE
1000 Mass. Ave. N.W.
Washington, D.C. 20001
(202) 842-0200
[email protected]
 i

QUESTION PRESENTED
Does the government get to decide what language is
“scandalous”?
 ii

TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i
TABLE OF AUTHORITIES ....................................... iii
INTEREST OF AMICI CURIAE ................................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT........................................................... 3
ARGUMENT ................................................................ 7
I. “VULGAR” LANGUAGE PLAYS AN
IMPORTANT ROLE IN SOCIETY........................ 7
A. Vulgar Language Is Necessary for Full and
Authentic Expression ...................................... 7
B. Distaste for “Vulgar” Language Often Arises
from Prejudice ................................................ 14
C. Profane Language Is Beneficial for Science
and Health ..................................................... 17
II. THE GOVERNMENT CANNOT OBJECTIVELY
DETERMINE WHAT LANGUAGE IS
“SCANDALOUS” .................................................. 22
A. There Can Be No Single Standard for
Offensiveness in a Pluralistic Society ........... 22
B. The Lines Censors Draw Are Often Biased,
Irrational, or Naïve ........................................ 26
CONCLUSION .......................................................... 30
 iii

TABLE OF AUTHORITIES
Page(s)
Cases
Matal v. Tam, 137 S. Ct. 1744 (2017) ..................... 3, 4
Minn. Voters Alliance v. Mansky,
138 S. Ct. 1876 (2018) ............................................ 22
United States v. One Book Called “Ulysses”,
5 F. Supp. 182 (S.D.N.Y. 1933) .............................. 10

Statutes
15 U.S.C. § 1052(a) ...................................................... 4

Higher Authority
1 Kings 14:10 (King James Version) ........................... 9
1 Kings 14:10 (New American Standard Bible).......... 9
William Shakespeare, Twelfth Night ........................ 28

Other Authorities
Adam Mansbach, Go the Fuck to Sleep (2011) ......... 12
Andrea Millwood-Hargrave, Delete Expletives?,
Ofcom (Dec. 2000), https://bit.ly/2Fr3PZF ....... 23-24
Bastien Bonnefous, Manuel Valls Droit dans Ses
Bottes Face à Sa Majorité, Le Monde
(Sep. 15, 2014), https://lemde.fr/2U1zCtQ ............ 25
Benjamin K. Bergen, What the F: What Swearing
Reveals About Our Language, Our Brains, and
Ourselves (2016) ............................................. passim
”Bloody,” Slang and Its Analogues,
(Farmer & Henley, eds., 1890) ......................... 14-15
 iv

Cory Scherer & Brad Sagarin, Indecent Influence:

The Positive Effects of Obscenity on Persuasion,
1 Social Influence 138 (2006) ................................. 11
Dan Merica, Sh*t Talking Is Democrats’ New
Strategy, CNN.com (April 24, 2017),
https://cnn.it/2FlCCb5 ............................................ 13
Dave Maclean, Intelligent People Are More Likely
to Swear, Study Shows, The Independent,
(Aug. 28, 2017), https://ind.pn/2jzdi6Y .................. 16
Emma Byrne, Swearing Is Good for You: The
Amazing Science of Bad Language (2018) ............ 18
Eric Rassin & Simone van der Heijden,
Appearing Credible? Swearing Helps!,
11 Psychology, Crime & Law No. 2 (2005) ............ 11
Fuck (ThinkFilm 2005) .............................................. 16
Gilad Feldman, et al., Frankly, We Do Give a Damn:
The Relationship Between Profanity and Honesty,
8 Social Psy. & Personality Science 816 (2017) .... 16
Gone with the Wind (MGM 1939).............................. 26
Jack Metzler, Cleaning Up Quotations,
18 J. of App. Practice & Process 143 (2017) ............ 9
James V. O’Connor, Cuss Control: The Complete
Book on How to Curb Your Cursing (2000) ........... 15
Jesse Sheidlower, The F-Word (2009) ................. 15, 29
John Hughlings Jackson, Selected Writings of John
Hughlings Jackson, Vol. 2 (1958) .................... 20, 21
Jon Pareles, From Cee Lo Green to Pink, Speaking
the Unspeakable, N.Y. Times, Mar. 15, 2011 ........ 12
 v

Jonathan Abrams, An Oral History of The Wire’s

Unforgettable 5-Minute ‘F*ck’ Scene,
Vulture (Feb. 13, 2018), https://bit.ly/2Sph1Yq .... 15
Kristin L. Jay & Timothy B. Jay, Taboo Word
Fluency and Knowledge of Slurs and General
Pejoratives: Deconstructing the Poverty-of-
Vocabulary Myth,
52 Language Sciences 251 (2015) .......................... 16
Lloyd Grove, John Boehner’s F-Bomb at Harry Reid
Plunges D.C. Incivility to New Low, The Daily
Beast (Jan. 3, 2013), https://bit.ly/2SBuKrn ......... 25
Megan M. Carpenter & Mary Garner, NSFW: An
Empirical Study of Scandalous Trademarks,
33 Cardozo Arts & Ent. L.J. 321 (2015) .... 24, 28, 29
Melissa Mohr, Holy Sh*t: A Brief History of
Swearing (2013) ............................................. passim
Michael Adams,
In Praise of Profanity (2016) ...................... 11, 13, 16
New Zealand Broadcasting Standards Authority,
Language That May Offend in Broadcasting,
June 2018, https://bit.ly/2CuLdY3 ........................ 23
Nick Carbone, Our Ten Favorite Joe Biden
Moments: The ‘BFD’, Time.com (Nov. 19, 2012),
https://bit.ly/2HyqTt2............................................. 25
Richard Stephens, et al., Swearing as a Response
to Pain—Effect of Daily Swearing Frequency,
12 J. of Pain (2011) ................................................ 20
Ross E. Davies, How Not to Bowdlerize,
The Green Bag Almanac and Reader (2009)........... 9
Ruth Wajnryb, Expletive Deleted: A Good Look
at Bad Language (2005) ................................... 13, 28
 vi

Simon Thomas, What Did Bowdler Bowdlerize,

OxfordWord Blog (July 11, 2016),
https://bit.ly/2JAqh84............................................. 10
Steven Pinker, The Stuff of Thought: Language
as a Window into Human Nature (2007) ...... passim
The Wire, Old Cases (HBO 2002).............................. 15
This Film Is Not Yet Rated (IFC Films 2006)........... 26
Thomas Bowdler,
The Family Shakespeare (1863) ..................... 8-9, 28
Timothy Jay, The Utility and Ubiquity of Taboo
Words, 4 Perspectives on Psychological Science,
No. 2 (2009) ............................................................ 10
Timothy Jay, Why We Curse: A Neuro-Psycho-
Social Theory of Speech (1999) ...................... passim
Tony McEnery, Swearing in English: Bad
Language, Purity and Power from 1586 to the
Present (2006) ......................................................... 16
William S. Cohen, Looking Back at Cohen v.
California, 34 U.C.L.A. L. Rev. 1595 (1987) ........... 6
 1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan think tank
dedicated to individual liberty, free markets, and lim-
ited government. Its Robert A. Levy Center for Consti-
tutional Studies promotes the principles of constitu-
tionalism that are the foundation of liberty. To those
ends, Cato conducts conferences and publishes books,
studies, and the annual Cato Supreme Court Review.
The DKT Liberty Project promotes liberty
against government encroachment. DKT is committed
to defending privacy, guarding against government
overreach, and protecting every American’s right and
responsibility to function as an autonomous and inde-
pendent individual. It espouses vigilance over regula-
tion of all kinds, but especially those that restrict civil
liberties. DKT has filed briefs as amicus curiae in this
Court and the lower courts on issues involving consti-
tutional rights and liberties, including the First
Amendment, freedom from unreasonable searches and
seizures, and the right to own and enjoy property.
Americans for Prosperity recruits, educates,
and mobilizes citizens to build a culture of mutual ben-
efit where people succeed by helping others improve
their lives. AFP advocates policies that promote that
culture, including free speech, criminal justice reform,
and limited government. Vague laws governing ex-
pression are particularly antithetical to a culture of
mutual benefit because they restrict expression while
undermining the rule of law and expanding govern-
ment power over the lives of private citizens.

1 Rule 37 statement: Both parties were notified of and con-

sented to the filing of this brief. No party’s counsel authored any
of this brief; amici alone funded its preparation and submission.
 2

P.J. O’Rourke is one of America’s leading political

satirists, an H.L. Mencken Research Fellow at the
Cato Institute, and an equal-opportunity offender.
Formerly the editor of the National Lampoon, he has
written for such scandalous publications as Car and
Driver, Playboy, Esquire, Vanity Fair, House & Gar-
den, The New Republic, New York Times Book Review,
Parade, Harper’s, and Rolling Stone. He is currently
editor-in-chief of the web magazine American Conse-
quences. O’Rourke’s books have been translated into a
dozen languages and are worldwide bestsellers. Three
have been New York Times bestsellers: Parliament of
Whores, Give War a Chance, and All the Trouble in the
World. He is also the author of Eat the Rich, Peace
Kills, and Don’t Vote: It Just Encourages the Bastards.
Nadine Strossen holds the John Marshall Harlan
II Chair at New York Law School, was president of the
ACLU from 1991 through 2008, and continues to serve
on the ACLU’s National Advisory Council. She also
holds leadership positions in other organizations that
focus on free speech issues, including the Foundation
for Individual Rights in Education (FIRE). Strossen’s
writings defending the freedom for offensive expres-
sion include Defending Pornography: Free Speech, Sex,
and the Fight for Women’s Rights (1995) and Speaking
of Race, Speaking of Sex: Hate Speech, Civil Rights,
and Civil Liberties (1994). Her latest book is HATE:
Why We Should Resist It with Free Speech, Not Cen-
sorship (2018). Her ideas on these topics have many
times been deemed sufficiently scandalous to trigger
boycotts, dis-invitations, and picketing, as well as
death threats. To cite one memorable example, on
April 12, 2005, while attempting to speak at an event
honoring Justice Scalia, she was shouted down by pro-
testors who were offended by some of his opinions and
 3

her participation in the event.2 Ironically, some of

these protesters engaged in offensive expression them-
selves, without Justice Scalia or anyone else trying to
suppress it. Strossen is proud to occupy a chair named
after the justice who authored Cohen v. California,
which upheld the right to engage in offensive and even
vulgar expression, recognizing that this is “powerful
medicine in a society as diverse . . . as ours” but ex-
plaining that “no other approach would comport with
the premise of individual dignity and choice upon
which our political system rests.”
Amici are committed to preserving free expression
and pushing people out of their comfort zones. We all
say things that some people find scandalous—but it’s
not the government’s role to make that judgment.
Amici have previously filed briefs in this Court in
many other First Amendment cases dealing with the
freedom of speech, including Matal v. Tam, 137 S. Ct.
1744 (2017); Walker v. Texas Div., Sons of Confederate
Veterans, Inc., 135 S. Ct. 2239 (2015); and Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334 (2014).

INTRODUCTION AND
SUMMARY OF ARGUMENT
Here we go again. Just two years ago, the Court
unanimously told the Patent and Trademark Office
(PTO) that it can’t punish trademarks just because
some people find them “disparaging.” Matal v. Tam,
137 S. Ct. 1744, 1751 (2017). Not having learned its
lesson, the PTO now insists it can punish trademarks
just because some people find them “scandalous.”

2 See, e.g., Petrox, Scalia at NYU Law: When Libs and Free
Speech Implode, DailyKos, Apr. 12, 2005, https://bit.ly/2OlyeNg.
 4

The PTO denied federal trademark registration for

a clothing brand called “fuct,” because that name
sounds like a naughty word. See Pet. App. 1a. That
verbal association ran afoul of a Lanham Act provision
that bars federal registration for any mark that “[c]on-
sists of or comprises immoral . . . or scandalous mat-
ter.” 15 U.S.C. § 1052(a). In practice, the provision is
used to deny registration to marks that PTO examin-
ers consider to be “vulgar.” See Pet. App. 3a.
Denying federal trademark registration has real
negative consequences. “Federal registration . . . con-
fers important legal rights and benefits on trademark
owners who register their marks.” Tam, 137 S. Ct. at
1753 (cleaned up, but not in the sense of removing
“bad” words). By the government’s own admission,
denying registration to “scandalous” marks “creates a
practical disincentive to their use by rendering certain
government benefits unavailable.” Pet. Br. 33.
But the government argues that this disincentive
should not be treated as a ban. Pet. Br. 40–41. This
should come as some surprise to this Court, given that
the Disparagement Clause, which provided exactly the
same disincentive, was struck down for “offend[ing] a
bedrock First Amendment principle: Speech may not
be banned on the ground that it expresses ideas that
offend.” Tam, 137 S. Ct. at 1751 (emphasis added).
The Scandalous Marks Clause violates the First
Amendment in the same way that the Disparagement
Clause did. As the Court explained in Tam, “powerful
messages can sometimes be conveyed in just a few
words.” Id. at 1760. By denying trademarks to words
deemed “scandalous,” the government is dictating per-
missible and impermissible vocabulary. And when our
 5

freedom to articulate our ideas is curtailed, our free-

dom to express those ideas is also curtailed:
Just as a healthy brain needs both its ‘higher’
and ‘lower’ parts, cerebral cortex and limbic sys-
tems, a healthy society needs its ‘good’ language
and its ‘bad.’ We need irreproachably formal
and unassailably decent speech, but we also
need the dirty, the vulgar, the wonderful ob-
scenities and oaths that can do for us what no
other words can.
Melissa Mohr, Holy Sh*t: A Brief History of Swearing
15 (2013).
None of the supposed interests raised by the gov-
ernment can justify this abridgment of vocabulary.
This case is not about where “vulgar” words will or
won’t appear in public places like billboards or broad-
casts. A trademark does not grant universal advertis-
ing rights that supersede local sign codes or FCC reg-
ulations. The debate over the extent to which a govern-
ment can limit words appearing in view of children can
be left for a later day (and such regulations are likely
better handled at the community level anyway).
Instead, this case is about whether brands can be
punished nationwide, regardless of where they adver-
tise and whom they choose to target for business, just
because the government finds their name distasteful.
Moral panic over “vulgar” language is nothing new. “In
the Middle Ages, blasphemous oaths were used so fre-
quently that authorities worried they might injure
God himself, and religious writers pleaded, then
threatened, in order to get people to stop swearing.” Id.
at 15. But its lengthy historical pedigree does not
make the goal any more legitimate.
 6

In 1971, attorney Mel Nimmer argued before this

Court in defense of the right to wear a jacket reading
“Fuck the draft.” While preparing for his appearance,
Nimmer “was convinced that he had to use that word,
and not some euphemism, in his oral argument to
make his point that its use could not be banned from
all public discussion.” William S. Cohen, Looking Back
at Cohen v. California, 34 U.C.L.A. L. Rev. 1595, 1599
(1987). Lo and behold, Nimmer got away with saying
the forbidden word in his very first answer, and the
foundations of the building did not crack.
This brief is submitted in the spirit of Nimmer, and
with the same intent. Although the words we use are
unusual for a Supreme Court brief, here they are nec-
essary. Just because a brand like Fuct might not fit the
PTO dress code doesn’t mean it has no place in Amer-
ican culture. The PTO’s efforts to discourage profanity
in American life are profoundly misguided.
When used judiciously, swearing can be hilari-
ous, poignant, and uncannily descriptive. . . . It
engages the full expanse of the brain: left and
right, high and low, ancient and modern. Shake-
speare, no stranger to earthy imprecations him-
self, had Caliban speak for the entire human
race when he said, “You taught me language,
and my profit on’t is, I know how to curse.”
Steven Pinker, The Stuff of Thought: Language as
a Window into Human Nature 372 (2007).
For these reasons, and those explained by the re-
spondents, the Court should affirm the Federal Cir-
cuit, striking down the “scandalous marks” provision.
 7

ARGUMENT
I. “VULGAR” LANGUAGE PLAYS AN
IMPORTANT ROLE IN SOCIETY
A. Vulgar Language Is Necessary for Full
and Authentic Expression
“In 1973, Yugoslav philologist Olga Penavin pre-
dicted that swearing would simply go extinct with the
spread of socialism. In a socialist utopia, there would
be no conflict, and thus no need for swearwords, she
reasoned.” Mohr, supra, at 254. Sadly for Dr. Penavin,
however, the oft-predicted triumph of socialism is still
running behind schedule. Society remains firmly fixed
in the real world, a world in which conflict, passion,
and high emotions are an inherent part of life. And so
long as such a world exists, it will remain impossible
to fully convey the full range of our thoughts and feel-
ings without a vocabulary that includes swearing.
The government argues that eliminating “vulgar”
words from speakers’ vocabularies does nothing to
hamper their ability to express any and all ideas. In
that telling, “scandalous marks are ineligible for reg-
istration not because they are thought to convey offen-
sive ideas, but because such marks reflect an offensive
mode of expressing whatever idea the speaker wishes
to convey.” Pet. Br. 20. (cleaned up, so to speak).
This is akin to arguing that the government could
ban most words of Latinate origin (such as encounter,
putrefy, and educate) without any harm to expression,
since those words each have Germanic equivalents
(such as meet, rot, and teach). Such a ban would obvi-
ously hinder expression. As any author knows—and
even many lawyers sense—expressing an idea well re-
quires finding just the right word, and writing with a
 8

truncated vocabulary is like conducting an orchestra

with one hand tied behind your back.
The nomenclature that the PTO considers scandal-
ous is no different. As Steven Pinker points out, a sen-
tence like, “Will you pick up your dog’s shit, and stop
him from pissing on my roses!” would not mean the
same thing if the profanity were replaced by politesse.
In a sanitized version of the same sentence, “the emo-
tional force of the speaker’s reaction is no longer being
conveyed.” Pinker, supra, at 352. A rose by another
name may smell as sweet—and dog “poop” still
doesn’t—but without the same visceral effect.
Artists and authors know the power of profanity.
Take just one example. In a climactic scene of the film
adaptation of Isaac Bashevis Singer’s Enemies: A Love
Story, a wife confronts the husband who betrayed her
after she had hidden him from the Nazis:
Fighting back tears of rage, she looks him in the
eye and says slowly, “I saved your life. I took the
last bite of food out of my mouth and gave it to
you in the hayloft. I carried out your shit!” No
other word could convey the depth of her fury at
his ingratitude.
Pinker, supra, at 371.
The PTO’s misguided belief that strong language
can be replaced by euphemisms with no harm to ex-
pression is nothing new. In 1818, Englishman Thomas
Bowdler took it upon himself to “improve” the lan-
guage of Shakespeare by removing all the fun parts.
As Bowdler explained in his preface, “[m]any words
and expressions occur which are of so indecent a na-
ture as to render it highly desirable that they should
be erased . . . neither the vicious tastes of the age, nor
 9

the most brilliant effusions of wit, can afford an excuse

for profaneness or obscenity.” Thomas Bowdler, The
Family Shakespeare vii (1863). In 1833, American
Noah Webster did the same to the Holy Bible, insert-
ing “euphemisms, words and phrases which are not
very offensive to delicacy.” See Mohr, supra, at 195.
If this type of “cleaning up”3 truly has no effect on
the expression of ideas, then we should expect classic
works to come out the other side of a Bowdlerist scrub-
bing none the worse for wear. But of course, any com-
parison shows that is not the case. Bowdlerization fre-
quently dulls and waters down otherwise vivid lan-
guage, making passages less poetic—and less faithful
to the ideas the author wanted to convey. Compare 1
Kings 14:10 King James Version (“Therefore, behold, I
will bring evil upon the house of Jeroboam, and will
cut off from Jeroboam him that pisseth against the
wall”) with 1 Kings 14:10 New American Standard Bi-
ble (“therefore behold, I am bringing calamity on the
house of Jeroboam, and will cut off from Jeroboam
every male person”) (discussed in Mohr, supra, at 81–
82); compare “Out, damned spot!” with “Out, crimson
spot!”, Ross E. Davies, How Not to Bowdlerize, The
Green Bag Almanac and Reader 235 (2009); compare
“the bawdy hand of the dial is now upon the prick of
noon” with “the hand of the dial is now upon the point
of noon,” Bowdler, supra, at 827. And inevitably, even
those projects that begin by insisting they will target
only offensive words will soon find that there are some
ideas that cannot be expressed in an inoffensive way.
Is there any polite way to say that a woman committed
suicide? Of course not, so Bowdler’s Ophelia drowns in

3 Not to be confused with “(cleaned up).” See Metzler, Clean-

ing Up Quotations, 18 J. of App. Practice & Process 143 (2017).
 10

an unfortunate accident. See Simon Thomas, What Did

Bowdler Bowdlerize, OxfordWord Blog (July 11, 2016),
https://bit.ly/2JAqh84.
Besides being necessary for expressing emotional
heights, scandalous words are indispensable when au-
thors capture how real people converse. Writers often
employ vulgar language to achieve a verisimilitude
that would otherwise be impossible. When James
Joyce first published Ulysses in 1922, the book came
under fire for its frequent use of profanity. But in an
opinion upholding the artistic merit of the book and
allowing it to be published in this country, Judge John
Woolsey explained, “The words which are criticized as
dirty are old saxon words, known to almost all men
and, I venture, to many women, and are such words as
would be naturally and habitually used, I believe, by
the types of folk whose life, physical and mental, Joyce
is seeking to describe.” U.S. v. One Book Called “Ulys-
ses”, 5 F. Supp. 182, 183–84 (S.D.N.Y. 1933).
The fact is, if an author wants to write the way peo-
ple talk, that author is going to have to include profan-
ity. The average contemporary English speaker uses
80 to 90 swear words per day. Timothy Jay, The Utility
and Ubiquity of Taboo Words, 4 Perspectives on Psy-
chological Science, No. 2, 155 (2009).4 One study found
that across three different social settings, only four
types of words were consistently used with the highest

4 This figure is even more impressive if we assume that those

who work at the PTO are as sensitive as the government claims.
See Pet. App. 33a (“At another point, the government indicated
its interest is to shield its examiners from immoral or scandalous
marks.”). Since none of these examiners could possibly have the
urge to sully their own lips, there must be some people out there
swearing 180 times a day to make up the difference.
 11

frequency: pronouns, articles, prepositions, and pro-

fanity. Mohr, supra, at 251.
Of course, curse words are not as routine as prepo-
sitions or pronouns, even if they are nearly as common.
“Curse words are words we are not supposed to say;
hence, curse words themselves are powerful.” Timothy
Jay, Why We Curse: A Neuro-Psycho-Social Theory of
Speech 18 (1999) [hereinafter Jay, Why We Curse]. For
this reason, their use can serve as a signal of trust and
familiarity that no euphemism could achieve.
In his autobiographical novel The Water Is Wide
(1972), author Pat Conroy recounts his experience as
a white teacher at an all-black school in the deep south
of the 1960s. As the book shows, “Conroy had to estab-
lish trust where there was none, and profanity helped
him do it.” Michael Adams, In Praise of Profanity 74
(2016). Conroy discovered that profanity, even the
mild-but-shocking-to-schoolchildren “bullcrap,” is a
signal of authenticity. In everyday life, profanity is “an
accident of just talking. Break down social barriers, at-
tempt to build new relationships, and people talk the
way they talk, neglecting self-censorship.” Id. at 75.
Profanity is thus a powerful rhetorical device. By
establishing a less formal connection with a listener, it
can make an orator or author seem both more trust-
worthy and more persuasive. See Eric Rassin &
Simone van der Heijden, Appearing Credible? Swear-
ing Helps!, 11 Psychology, Crime & Law No. 2, 177
(2005) (finding that testimony containing words such
as “God damn it,” “shitty,” “fucking,” and “asshole” was
perceived as more credible than otherwise identical
testimony without swears); Cory Scherer & Brad Saga-
rin, Indecent Influence: The Positive Effects of Obscen-
ity on Persuasion, 1 Social Influence 138 (2006).
 12

The same principles hold true for titles of artistic

works, which serve as a form of advertising and brand
identity for artists and authors:
In March 2011, three of the top-ten hit songs on
the Billboard pop music chart had obscenities in
their titles . . . . Cee Lo Green told various people
off with ‘Fuck You!,’ Enrique Iglesias begged
pardon for his rudeness in announcing ‘Tonight
(I’m Fucking You),’ and Pink told listeners that
they needn’t be ‘Fuckin’ Perfect.’
Mohr, supra, at 246; see also Jon Pareles, From Cee Lo
Green to Pink, Speaking the Unspeakable, N.Y. Times,
Mar. 15, 2011 (noting the effectiveness of the taboo
chorus in a market where “[p]op songs fight to be no-
ticed in an arms race of sentiments, gimmicks, sonic
manipulation and promotional strategies”). And such
edgy strategies are not limited to hip-hop. In fact,
“New York Times best-selling books have been ahead
of the curve in this respect.” Mohr, supra, at 247. Pe-
rusing the historical list of titles that made this list,
one would find “Randall Kennedy’s Nigger way back in
2003, followed by Harry Frankfurt’s On Bullshit
(2005), Justin Halpern’s Shit My Dad Says (2009), and
Adam Mansbach’s Go the Fuck to Sleep (2011).” Id.5
And this brings us, finally, to brands themselves.
The government attempts to distinguish brand names

5 Counsel of record is the father of two young boys and owns

Go the Fuck to Sleep. He can attest to the profound truth of par-
enting conveyed by the narrator’s profane imploring, which cap-
tures a state of mind every new parent experiences:
The flowers doze low in the meadows
And high on the mountains so steep.
My life is a failure, I’m a shitty-ass parent.
Stop fucking with me, please, and sleep.
 13

from longer artistic works by arguing that trademarks

are “simply source identifiers.” Pet. Br. 44. But even
the shortest brand name can pack an expressive punch
and define an identity. When a clothing brand chooses
a name like “FCUK,” for example, this choice embraces
“the risqué element, the apparent avoidance through
mis-ordering, the in-your-face-ness of fuck, which they
appear to sidestep but in fact highlight.” Ruth Wajn-
ryb, Expletive Deleted: A Good Look at Bad Language
187 (2005). In this way, “both profanity and its euphe-
misms help to manufacture the brand community.”
Adams, supra, at 71. Though it’s certainly not what
every brand wants, edgy and even vulgar language can
perform an important signaling role.
Of course, all of these examples are not to suggest
that that every use of profanity comes from a place of
authenticity. Like any rhetorical device, profanity can
be manipulated, with varying degrees of success.6 Nor
is profanity something that every speaker wants to be
associated with. The point is that whether to use pro-
fanity is a choice—a meaningful choice—that changes
not just the mode of expressing ideas but the attitude
and meaning of the ideas themselves. As the psycholo-
gist Timothy Jay explains:
How we use these curse words portrays our deep
emotional investment in a personal identity
which we use to experience the world, to differ-
entiate ourselves from others, and to express
our feelings and attitudes about others. The use

6Like other rhetorical devices, profanity can be transparently

put on as an affectation. When done clumsily, the effect is far less
powerful—and more cringe-inducing. See, e.g., Dan Merica, Sh*t
Talking Is Democrats’ New Strategy, CNN.com (April 24, 2017),
https://cnn.it/2FlCCb5.
 14

of these words tells us who we are and how we

fit in the world. We do not just utter curse
words; curse words are part of our identities.
Jay, Why We Curse 82.
The choice of how we use these words, like all other
expressive choices, is one that the First Amendment
allows us to make without punishment.
B. Distaste for “Vulgar” Language Often
Arises from Prejudice
Not only does punishing profanity harm expres-
sion, it also carries unjustified value judgments about
class and culture. “Vulgar language makes a class dis-
tinction—it is that spoken by ordinary, uneducated
folk. It has become a synonym for swearing because
‘the common people’ have through the centuries been
thought to be more likely than others to employ pro-
fane or obscene language.” Mohr, supra, at 11.
Much of the distaste for obscenity comes from a no-
tion that peppering speech with colorful words belies a
lack of education, a small vocabulary, or both. One
1890s English slang dictionary derisively defined
“bloody” this way:
[A]s it falls with wearisome reiteration every
two or three seconds from the mouths of London
roughs of the lowest type, no special meaning,
much less a sanguinary one, can be attached to
its use. In such a case it forms a convenient in-
tensitive, sufficiently important as regards
sound to satisfy those whose lack of language
causes them to fall back upon a frequent use of
words of this type.
 15

“Bloody,” Slang and Its Analogues, (Farmer & Henley,

eds., 1890). The 1888 Oxford English Dictionary simi-
larly editorialized that “bloody” was a word “con-
stantly in the mouths of the lowest classes, but by re-
spectable people considered a ‘horrid’ word.” See Mohr,
supra, at 212.
This conflation of swearing with mental laziness or
ignorance has continued to the present. In the anti-
swearing book Cuss Control, the author writes that:
[T]he S word and several other obscenities have
many applications. When we get mentally and
verbally lazy, these words are always on call,
sparing us the task of scanning our brain and
downloading even the most simple noun or ad-
jective. There seems to be no need to make the
effort when talking intelligently is rarely a so-
cial requirement, and curse words are as com-
mon as bad grammar.
James V. O’Connor, Cuss Control: The Complete Book
on How to Curb Your Cursing 18 (2000).
It is ironic that words which can be so versatile,
with an entire encyclopedia devoted to the meanings
of just the word “fuck,” can be derided as used only by
those with deficient vocabularies. See generally Jesse
Sheidlower, The F-Word (2009). Indeed, “fuck,” is so
versatile and expressive a word that an entire scene of
a prestige television drama was written with dialogue
containing nothing but variations of it. See The Wire,
Old Cases (HBO 2002); see also Jonathan Abrams, An
Oral History of The Wire’s Unforgettable 5-Minute
‘F*ck’ Scene, Vulture (Feb. 13, 2018),
https://bit.ly/2Sph1Yq.
 16

Scenes like that give the lie to the notion that pro-
fanity is purely the domain of those with small vocab-
ularies. “When things are so grim . . . ordinary words
fail even the most seasoned detectives. It’s not that
[the detective characters] don’t know more words—
there just isn’t anything else to say but fuck, or Aw,
fuck, or motherfuck.” Adams, supra, at 134.
In sum, stereotypes about those who use profanity
are just that: stereotypes. In fact, studies have shown
that using profanity is positively correlated with both
intellect and honesty. See, e.g., Kristin L. Jay & Timo-
thy B. Jay, Taboo Word Fluency and Knowledge of
Slurs and General Pejoratives: Deconstructing the Pov-
erty-of-Vocabulary Myth, 52 Language Sciences 251
(2015); Gilad Feldman, et al., Frankly, We Do Give a
Damn: The Relationship Between Profanity and Hon-
esty, 8 Social Psycological & Personality Science 816
(2017); see also Dave Maclean, Intelligent People Are
More Likely to Swear, Study Shows, The Independent,
(Aug. 28, 2017), https://ind.pn/2jzdi6Y.
If there is an element of truth to the identification
of obscenity with lower classes, it arises not from a lack
of education but instead from the fact that obscenity in
literature and music are the most effective words “for
resisting ‘the system’ and the dominant culture that
expects certain kinds of ‘good’ language and behavior.”
Mohr, supra, at 248. As the linguist Tony McEnery ar-
gued, “[b]roadly speaking, the discourse of power ex-
cludes bad language, the discourse of the disempow-
ered includes it.” Tony McEnery, Swearing in English:
Bad Language, Purity and Power from 1586 to the Pre-
sent 10 (2006). Or as Lenny Bruce put it even more
pointedly: “If you can’t say ‘fuck,’ you can’t say ‘fuck
the government.’” See Fuck (ThinkFilm 2005).
 17

If indeed profanity is used to a greater extent by

the disempowered, this only further establishes that a
ban aimed solely at profanity can never be truly “view-
point neutral.” The history of prejudicial attitudes be-
hind anti-profanity campaigns is yet another reason to
reject the idea that punishing profanity can ever serve
a legitimate government interest.
C. Profane Language Is Beneficial for Sci-
ence and Health
Discouraging profanity not only fails to further a
legitimate interest, it also affirmatively harms the pro-
gress of science by placing an unnecessary taboo on a
rich area of research. Put simply “we learn things
about language, the mind, the brain, and society from
profanity that we simply couldn’t know if we pointed
our microscopes elsewhere.” Benjamin K. Bergen,
What the F: What Swearing Reveals About Our Lan-
guage, Our Brains, and Ourselves 223 (2016).
First, swear words have helped us to better under-
stand our own brains and how we process language.
Scientists have observed that patients with damage to
the left hemisphere of their brain can lose “the ability
to construct syntactically correct sentences[], while re-
taining the ability to curse.” Jay, Why We Curse 33.
Why would this be? Language is typically said to
originate from the brain’s left hemisphere, which is as-
sociated with “calculation, analytic thinking, and ver-
bal reasoning.” Id. at 35. An expletive, however, is one
of the few pieces of language that contains its whole
meaning in a single word, without needing to be com-
bined with others in a complex syntax. A dirty joke or
pun, on the other hand—much as we like “dad jokes”—
 18

requires syntax. The left-hemisphere-damaged pa-

tients could achieve the former, but not the latter.
Thus, these studies of swearers led researchers to re-
alize that holistic speech—singular words and phrases
that contain a set meaning and pack an emotional
punch—actually comes from the right hemisphere,
which also controls “visualization, musical abilities,
spatial reasoning, and holistic processing.” Id.7 In this
way, “understanding how and why we swear has
helped us to reverse-engineer the structure of the
brain.” Emma Byrne, Swearing Is Good for You: The
Amazing Science of Bad Language 29 (2018).
This phenomenon means that in some cases, curse
words become the last link between loved ones and a
friend or family member dealing with cognitive loss.
One early researcher
described patients who uttered ‘god bless’ when
frustrated or ‘damn’ when a family member did
not arrive at the hospital on time. However, the
patient could not construct sentences with curse
words on demand. While a brain-damaged pa-
tient cannot construct sentences, he or she can
utter meaningful emotional statements learned
in childhood. Hence, curse words remain acces-
sible as implicit knowledge when other avenues
for communication become unavailable.
Jay, Why We Curse 87.

7 This understanding of the brain is supported by the case of

a man with damage to his right hemisphere. After his injury he
could still speak in fluent sentences, but “he was unable to sing
familiar songs or recite nursery rhymes, and he couldn’t sponta-
neously swear.” Bergen, supra, at 90. In other words, he had been
rendered into the model PTO employee.
 19

Placing a taboo on curse words, reinforced by gov-

ernment policies establishing those words as unde-
sired, only adds unneeded harm and embarrassment
for patients and families in this situation. When
Charles Baudelaire was hospitalized after a stroke in
1866, for example, he barely spoke except to utter the
phrase “cré nom,” short for “sacré nom de Dieu.” He
repeated this phrase so often that the nuns who served
as his caretakers threw him out of the hospital, “so un-
forgivably offended . . . that they could explain Baude-
laire’s outbursts only as the result of satanic posses-
sion.” Mohr, supra, at 3.
In addition to neuroscientists, linguists have also
long marveled at the unique properties of profanity.
Swearwords are some of the most versatile words in
any language. “Geoffrey Hughes categorizes swearing
into eight classes, while Tony McEnery finds sixteen.”
Mohr, supra, at 214. Swear words are also grammati-
cal wonders. English has prefixes and suffixes galore,
but how many words can be placed in the middle of
other words? “[O]nly profane words (or near facsimi-
les) can be ‘infixed’ into other words in English,” in
such classic examples “as the fucking in un-fucking-
believable.” Bergen, supra, at 6.
Further, swears are the only adjectives that can
modify the mood of an entire sentence. Steven Pinker
provides this example:
Interviewer: Why is British food so bad?
John Cleese: Because we had a bloody empire to
run, you see?
Pinker, supra, at 361.
 20

If “bloody” were a normal adjective, it would be

modifying the noun “empire.” Yet “Cleese was not cast-
ing aspersions on the empire on which the sun never
set; he was expressing mock exasperation with the in-
terviewer’s question.” Id. Expletives thus have the
unique ability to break the fourth wall of the sentences
that contain them. Like characters in a play choosing
to talk about the play they are in rather than their fel-
low characters, “[e]xpletives indicate that something is
lamentable about an entire state of affairs, not the en-
tity named by the noun.” Id.
Not only is swearing of interest to researchers, it
has been shown to have practical benefits as a scien-
tifically proven painkiller. See Richard Stephens, et
al., Swearing as a Response to Pain—Effect of Daily
Swearing Frequency, 12 J. of Pain, Issue 12, 1274
(2011) (finding that those who yelled swear words such
as “fuck!” could endure submerging their hands in
painfully cold water for 40 seconds longer, on average,
than those who attempted to suffer with dignity). In-
stead of discouraging profanity, perhaps the govern-
ment should instead be promoting it as the only proven
painkiller with no risk of dangerous side-effects.
Finally, swearing is practically useful for the sim-
ple reason that it can serve as an emotional outlet for
settling conflicts that might otherwise turn physical.
“It has been said that he who was the first to abuse his
fellow-man instead of knocking out his brains without
a word, laid thereby the basis of civilization.” John
Hughlings Jackson, Selected Writings of John Hugh-
lings Jackson, Vol. 2 179 (1958).
In early 16th Century Scotland, royals would pit
poets against each other in comedic insult battles
 21

called “flyting.” “Flyting was very much like the free-

style battles of today, in which rappers compete to in-
sult each other in the most creative ways.” Mohr, su-
pra, at 155. A few “flyting” lines have been preserved
for posterity, including Walter Kennedy’s dismissal of
William Dunbar as a “Skaldit skaitbird and common
skamelar, / Wanfukkit funling that Natour maid ane
yrle” (Rough translation: “diseased vulture and com-
mon parasite, / weakly conceived foundling that Na-
ture made a dwarf”). Id. From antient flyting to mod-
ern rap, “this kind of organized obscenity has evolved
over and over in society—it must represent a fairly
universal human urge.” Id. at 248. To the extent this
urge has found an outlet in playful insults, profanity
is crucial in civilized society, as “an important safety
valve, allowing people to express negative emotions
without resorting to physical violence.” Id. at 255.
Official attempts to discourage profanity ignore the
role such words play in our lives. Profanity is a means
to express and define ourselves, to cope, to joke, and to
mock. Profanity is an integral part of the human con-
dition. Indeed, a language stripped of profanity isn’t a
recognizable language at all. “[D]espite the variation
across time and space, it’s safe to say that most lan-
guages, probably all, have emotionally laden words
that may not be used in polite conversation.” Pinker,
supra, at 330.8 The choice to use those words, in good
company or otherwise, isn’t the government’s to make.

8 “Perhaps the most extreme example is Djirbal, an Aborigi-

nal language of Australia, in which every word is taboo when spo-
ken in the presence of mothers-in-law and certain cousins. Speak-
ers have to use an entirely different vocabulary (though the same
grammar) when those relatives are around.” Pinker, supra, at
330. And you thought your Thanksgiving dinner was tense.
 22

II. THE GOVERNMENT CANNOT

OBJECTIVELY DETERMINE WHAT
LANGUAGE IS “SCANDALOUS”
When the government creates a scheme approving
of some speech and disapproving of other speech, it
must at the very least “articulate some sensible basis
for distinguishing what may come in from what must
stay out.” Minn. Voters Alliance v. Mansky, 138 S. Ct.
1876, 1888 (2018). A standard runs afoul of the First
Amendment if it “introduces confusing line-drawing
problems,” because such a standard creates “the poten-
tial for erratic application.” Id. at 1889–90. So when
government employees apply a speech code, their “dis-
cretion must be guided by objective, workable stand-
ards.” Id. at 1891. The PTO’s “scandalous marks” pro-
vision does not come close to meeting this requirement.
A. There Can Be No Single Standard for Of-
fensiveness in a Pluralistic Society
The test used by the PTO to determine whether a
mark is immoral or scandalous is whether a “substan-
tial composite of the general public” would find the
mark “shocking to the sense of truth, decency, or pro-
priety; disgraceful; offensive; disreputable; . . . giving
offense to the conscience or moral feelings; . . . or call-
ing out for condemnation.” Pet. App. 29a–30a.
Putting aside the vagueness of the term “substan-
tial composite,” (which, we are told, is “not necessarily
a majority,” see Pet. App. 66a n.11 (emphasis added)),
how does the government expect to know public tastes
at all? Remarkably, it has apparently never actually
asked us. Even the FCC, which deals with this prob-
lem more often than the PTO, has never taken a single
 23

survey. “As far as anyone can tell, the FCC hasn’t ac-
tually done the legwork to find out what people really
think about words—what’s profane, in the present cul-
ture, in the present time.” Bergen, supra, at 10.
But a single survey would not solve the more fun-
damental problem, which is that there cannot be one
consensus standard of “scandalous language” in a het-
erogeneous society. Just look at the nations that actu-
ally have attempted such surveys. In New Zealand, for
example, the Broadcasting Standards Authority con-
ducts a regular survey asking whether citizens would
find certain words always acceptable on radio and tel-
evision, never acceptable, or acceptable in only some
contexts. The results show a wide range of opinions. In
other words, no matter how a government chooses to
categorize any given word, it will always go against the
values of a significant portion of the population. For
example, the most recent survey found that 15 percent
of the population viewed the word “God” as never ac-
ceptable for broadcast television, while 15 percent—
probably not the same 15 percent—found “fuck” to al-
ways be acceptable. See N.Z. Broad. Standards Auth.,
Language That May Offend in Broadcasting, June
2018, https://bit.ly/2CuLdY3. That same study found
that offensive standards vary across ages. For exam-
ple, while only 18 percent of those 25–34 found “Jesus
Christ” to be unacceptable in a TV drama, 36 percent
of those 65 and over still found it unacceptable. Id. And
on several words, the society was as evenly divided as
could be, with a virtual 50/50 split on the question
whether “mother fucker,” “chink,” or “faggot,” were
sometimes acceptable. Id. This lack of consensus is not
peculiar to New Zealand. A similar study in Great
Britain likewise “shows rampant disagreement.” Ber-
gen, supra, at 13 (citing Andrea Millwood-Hargrave,
 24

Delete Expletives?, Ofcom (Dec. 2000),

https://bit.ly/2Fr3PZF).
As scholars have noted, “[t]his diversity of opinion
prompts a host of second-order questions.” Bergen, su-
pra, at 12. For example, “suppose there’s a word that
a minority subgroup of the population finds profane,
and say it’s a term of abuse. . . . In such a case, which
matters more, the opinions of the population in aggre-
gate or those of people in the relevant subgroup? How
do you decide?” Id. Suppose a similar split appeared in
attitudes about a particular word based on class or ed-
ucation. What should be the standard for a govern-
ment censor evaluating offensiveness? The standards
of the middle class? Of the most educated? Once again,
there is no answer in the statute. Nor is there any an-
swer that could be fair to society as a whole.9
As an added wrinkle, “[a] trademark is scandalous
or immoral in context of the relevant marketplace for
the applicant’s goods or services identified in the ap-
plication.” Megan M. Carpenter & Mary Garner,
NSFW: An Empirical Study of Scandalous Trade-
marks, 33 Cardozo Arts & Ent. L.J. 321, 334 (2015) (ci-
tations omitted). If examiners took this aspect of the
test literally, they would in some cases have to famil-
iarize themselves with the norms of other nations. But
attitudes toward profanity vary just as much across

9 Those who consider themselves of a more refined class will

seize on any difference in vocabulary to differentiate themselves
and label the alternative “vulgar.” “In Britain . . . toilet is vulgar
in the original sense of the term—it has class connotations, em-
ployed by people of the middle class on down. Loo is the word used
by upper-class Brits. . . . [W]hen Prince William and Kate Mid-
dleton broke up briefly in 2007, the British press blamed it on
Kate’s mother’s use of the word toilet.” Mohr, supra, at 202.
 25

nations as they do within them. In France, for exam-

ple, the mainstream culture’s attitude toward profan-
ity is so relaxed that Le Monde can quote the Prime
Minister referring to a situation as “foutu” (fucked)
with no real scandal. See Bastien Bonnefous, Manuel
Valls Droit dans Ses Bottes Face à Sa Majorité, Le
Monde (Sep. 15, 2014), https://lemde.fr/2U1zCtQ.10
The answer to these dilemmas is that the govern-
ment should get out of the business of defining what is
offensive or scandalous. It is simply impossible to find
one cultural “spectrum” or “ranking” of offensive words
that everyone will agree on even within a single coun-
try. While religious oaths are popularly understood to
have been supplanted by sexual and excretory lan-
guage as the more offensive terms, there are many for
whom the old order still reigns. One scholar inter-
viewed a modern-day member of an evangelical group
at Oxford University who explained “It’s offensive to
God, basically, to take His name in vain. . . . I find that
kind of swearing more offensive, probably, than the ‘F-
word’ or whatever.” Mohr, supra, at 257.
“Profanity isn’t fixed. It’s variable, it’s context-sen-
sitive, and it’s relative. It’s the product of cultural at-
titudes toward specific words, attitudes that can differ
radically from person to person and from culture to
culture.” Bergen, supra, at 221. When the government
tries to create one standard for a whole country, such

10In the U.S., perhaps uniquely, the offensiveness of a politi-

cian dropping an F-bomb depends on his or her political party.
Compare Nick Carbone, Our Ten Favorite Joe Biden Moments:
The ‘BFD’, Time.com (Nov. 19, 2012), https://bit.ly/2HyqTt2, with
Lloyd Grove, John Boehner’s F-Bomb at Harry Reid Plunges D.C.
Incivility to New Low, The Daily Beast (Jan. 3, 2013),
https://bit.ly/2SBuKrn.
 26

a project inevitably involves telling a significant por-

tion of that country that their standards are wrong and
out of step with the official orthodox standards of the
U.S. government. There is no reason the government
should involve itself in such a project.
B. The Lines Censors Draw Are Often Biased,
Irrational, or Naïve
There is strong evidence that when censors have
the power to make subjective decisions over what is
“scandalous,” biases in favor of majority groups and
powerful groups naturally arise.
This problem is not limited to government. When
Rhett Butler left Scarlett O’Hara with the line “frankly
my dear, I don’t give a damn,” in the film Gone with
the Wind (MGM 1939), the movie evaded a fine for the
word “damn” only because of a recent change in the
Screen Code that excepted profanity in direct quota-
tions from literary works. Mohr, supra, at 232. But
that same code, hypocritically, “did not forbid or dis-
courage the use of racial epithets such as nigger.” Id.
The original film script included the repeated use of
that slur, which was removed from the script only
“when the film’s African American actors refused to
say the word and hundreds of letters poured in object-
ing to its use.” Id. Speech codes can reveal standards
that seem not just backwards, but morally offensive.
More recently, the documentary This Film Is Not
Yet Rated (IFC Films 2006) undertook a survey of
MPAA ratings and found that movies with scenes in-
volving gay sex were much more likely to incur an
“NC-17” rating than movies with comparable scenes of
straight sex, and that scenes emphasizing female sex-
ual pleasure were rated more harshly than scenes of
 27

male pleasure. Whether intentional or not, vague

standards such as “scandalous to the community” in-
vite this type of biased treatment. They especially risk
special punishment for the expression of minority
groups that are seen as outside the norm.
Censors in all fields routinely distinguish based on
whether a “scandalous” word is spelled out or partially
“hidden” through missing or rearranged letters. Yet
studies have shown that this distinction does nothing
to actually affect the reader’s experience.
One clever study had people read sentences
with either profane words (like This custard
tastes like shit) or censored versions (like This
custard tastes like s#!t). After reading the sen-
tences, participants performed a memory task
to see whether they remembered exactly what
they had seen. They would see one of the two
sentences, with s#!t or shit, and had to say if
this was the exact sentence they saw before.
When shit replaced s#!t, most people had no
idea.
Bergen, supra, at 218.
Similar alterations have in the past done nothing
but marred artistic works, such as when Norman
Mailer was convinced by his publisher to use “fug”
throughout the The Naked and the Dead (1948).11 Yet
the PTO has demonstrated adherence to this fallacy,
approving the trademark of the clothing brand FCUK
while denying the trademark for the brand at issue in

11 On one (possibly apocryphal) occasion, this supposedly

prompted a socialite to approach Mailer at a party by saying “So
you’re the young man who can’t spell fuck.” Mohr, supra, at 228.
 28

this case, Fuct. See Pet. App. 40a. Of course, any con-
sumer who reads the word FCUK “realize[s] the mis-
ordering [of letters] only after fuck has registered.”
Wajnryb, supra, at 187. The PTO cannot seriously ar-
gue that the fig leaf of misordering makes any real
change, yet decisions on which brands make the cut
can seemingly turn on such meaningless differences.
Further, although censors may be trained to spot
“obvious” profanity, they are often oblivious to double-
entendre or codewords. “[W]hen Matt Stone and Trey
Parker made their feature-length South Park film . . .
the title was originally South Park: All Hell Breaks
Loose, but the MPAA categorically rejected the word
Hell, so the film was retitled with a plausibly more of-
fensive double entendre: South Park: Bigger, Longer
and Uncut.” Bergen, supra, at 220.
Shakespeare himself took delight in wordplay by
means of homophones, suggesting to his audience var-
ious naughty words without ever having to outright
say them. See, e.g., Twelfth Night act 2, scene 5 (Mal-
volio: “By my life this is my lady’s hand. These be her
very C’s, her U’s and [sounds like “N”] her T’s and thus
makes she her great P’s.”). Shakespeare’s subtle
spelling game slipped past the watchful Bowdler, who
printed it unaltered. Bowdler, supra, at 73.
PTO examiners have in some cases shown similar
naiveté when it comes to approving and denying
marks, such as one examiner who considered “Cum To-
gether” to be acceptable because it’s merely a parody
of the Beatles. See Carpenter & Garner, supra, at 351.
Conversely, in some cases, government censors
have been over-eager to find a naughty word when a
mark was likely intended to be innocuous. In initially
 29

rejecting a wine brand called “White Ass,” the PTO ex-

aminer overlooked the fact that the wine’s logo “in-
cluded ears and a tail on the ‘A’ in the mark.” Carpen-
ter & Garner, supra, at 353. Only after this was
pointed out on appeal was the rejection reversed. Id.
In looking fastidiously for vulgarity just to prove how
much they dislike it, enterprising censors resemble the
woman who once complimented the dictionary author
Samuel Johnson for excluding vulgarities. Johnson al-
legedly replied to her “No, Madam, I hope I have not
daubed my fingers. I find, however, that you have been
looking for them.” Sheidlower, supra, at xxix.
Finally, and most troubling of all, different exam-
iners have reached different conclusions on marks con-
taining the same word, demonstrating the utter lack
of guidance in this area. See, e.g., Carpenter & Garner,
supra, at 354 (noting that the PTO granted a mark for
“Bonerwear” but denied a mark for “Boner Bats”). See
also Pet. App. 39a–40a (noting that the PTO had been
similarly inconsistent in deciding whether to grant
trademarks containing words like “fugly,” “cocaine,”
“BS,” “turd,” and “MILF”); Carpenter & Garner, supra,
at 357 (finding further inconsistency for marks con-
taining “anal,” “ass,” “cock,” “fag,” “penis,” “slut,” and
“whore”). Despite the inconsistent rulings by PTO ex-
aminers, their decisions to reject marks for being
“scandalous” are rarely reversed. See id. at 345 (noting
that the lack of success on appeal “may be . . . because
the lack of clear legal standards for examiners makes
it too difficult for applicants to overcome refusals.”).
“In sum, the various ways we react to profanity by
trying to limit it are grossly ineffectual. They generally
don’t decrease how much it’s used, and even when they
do, new words spring up in their place.” Bergen, supra,
 30

at 220. The ineffective and inconsistent application of

the PTO’s vague standards alone makes the “scandal-
ous marks” provision unconstitutional.

CONCLUSION
It is precisely in the sterile environment of govern-
ment agencies where profanity might seem the most
offensive and worthless. After all, in swearing as in all
else, context is everything. “What makes a dirty joke
inappropriate or unfunny depends on the joke and the
context (the office versus the local pub). . . . [O]ffen-
siveness and humor depend on cultural contexts.” Jay,
Why We Curse 19. But it is exactly this context-de-
pendency that can make examiners and other officials
lose sight of the fact that transgressive and risqué lan-
guage has its necessary place.
The government’s attempt to define and punish
scandalousness is both misguided and unconstitu-
tional, so the Court should affirm the Federal Circuit.
Respectfully submitted,
Thomas Berry Ilya Shapiro
768 N. Wakefield St. Counsel of Record
Arlington, VA 22203 Trevor Burrus
CATO INSTITUTE
1000 Mass. Ave. N.W.
Washington, D.C. 20001
(202) 842-0200
[email protected]