The Supreme Court is set to hear a case revolving around the phrase ‘Trump too small,’ a trademark attempt aimed at criticizing former President Donald Trump.
What Happened: The case comes from a trademark registration attempt by California-based attorney Steve Elster. Elster sought to register ‘Trump too small’ as a trademark for t-shirts intended to critique the former president, The Hill reported.
The initial application was declined due to a provision preventing registered trademarks that name a living individual without their consent. However, a federal appeals court later overturned this decision, ruling that the provision violated Elster’s free speech rights, especially considering his intention to critique a government official.
The phrase ‘Trump too small’ refers to a personal dispute between Trump and Sen. Marco Rubio (R-FL) in 2016. Rubio criticized Trump’s hand size, implying a lack of trustworthiness.
"He's always calling me ‘Little Marco.' … Have you seen his hands? They're like this," Rubio said at a campaign rally.
"And you know what they say about men with small hands — you can't trust them."
"He referred to my hands, ‘If they are small, something else must be small.' I guarantee you there is no problem. I guarantee," Trump later responded to Rubio’s comments during primary debate days.
Why It Matters: The Supreme Court will now hear the case, with the Justice Department under the Biden administration defending the provision. This case represents the third instance in six years that the Supreme Court has been asked to rule on a case questioning whether certain restrictions in the Lanham Act, the primary federal trademark law, are in violation of the First Amendment’s free speech protections.
The Justice Department is expected to argue that the existing restriction is viewpoint-neutral and only needs to pass a lower test. Conversely, Elster argues that the provision imposes unacceptable content-based and speaker-based regulations on speech.
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