A Donald Trump case goes to the Supreme Court: A Donald Trump-related case – but not one of the criminal cases — goes before the U.S. Supreme Court this week.
The Latest Donald Trump Legal Drama
A case involving whether the Patent and Trademark Office (PTO) violated the First Amendment in refusing an anti-Trump political slogan is set to land in the U.S. Supreme Court this week.
According to Fox News, it is a First Amendment case that involves a Democrat who used then-President Donald Trump’s likeness on t-shirts and sought to obtain a trademark for the phrase “Trump Too Small.”
Steve Elster is described as a “politically active Democrat attorney in California” who, after a memorable exchange in a 2016 presidential debate between Trump and Marco Rubio, had made t-shirts with ‘Trump Too Small” on them. It was a reference to the idea that the former president has unusually small hands; Spy Magazine, back in the 1980s, had referred to Trump as a “short-fingered vulgarian.”
The shirts feature the phrase “Trump Too Small” on the front, along with an approximation of Trump’s hand, while the back states that Trump is “small” on other things, including the environment, civil rights, LGBTQ rights, workers rights, voting and rights, and “affordable health care for all.”
The shirts remain available for sale. “Donald Trump was too small for America in 2016 and 2020, and he’s going to be even smaller in 2024!” the website says.
But when Elster tried to trademark the “Trump Too Small” phrase, the Patent and Trademark Office turned him down, as did an appeals board, stating that Trump had not consented to the use of his name.
A federal circuit court later reversed the decision on First Amendment grounds. The Justice Department is arguing on behalf of the government.
“When registration is refused because a mark ‘[c]onsists of or comprises a name…identifying a particular living individual’ without ‘his written consent,’ ‘[n]o speech is being restricted; no one is being punished,’” the DOJ said in its petition, per Fox News.
The arguments began on Wednesday. And per NBC News, the court indicated Wednesday that it would not allow the trademark.
“The court looks likely to affirm a U.S. Patent and Trademark Office decision that rejected the application,” the NBC News report said.
Justice Neil Gorsuch, who was appointed by Trump, stated that traditionally, trademarks referencing living people have not usually been granted without the person’s permission.
“Why not just look to the history here and see whether historical evidence comports with this being a First Amendment liberty or not?,” Gorsuch asked.
Another justice, Sonia Sotomayor, stated that even without the trademark on the phrase, Elster may continue to sell the shirts.
“It doesn’t stop you from selling. It doesn’t stop you from selling anywhere as much as you want,” the liberal justice told Elster’s attorney.
“If your argument is that somehow your speech is being impeded, I think it would be good to know precisely how it’s being impeded or burdened,” Justice Clarence Thomas said during the hearing.
CNN also reported that the Court seemed likely to rule against Elster in the case.
“Presumably there’ll be a race for people to trademark, you know, ‘Trump Too This,’ ‘Trump Too That,’ whatever,” Chief Justice John Roberts said. “And then, particularly in an area of political expression, that really cuts off a lot of expression you might – other people might regard as important infringement on their First Amendment rights.”
Former President Trump himself is not a party to the case, although with all of the current cases involving him pending, there’s a decent chance at least one of them will end up before the Supreme Court. The lawsuits, pending in several states, seeking to kick Trump off the 2024 ballot on 14th Amendment grounds will likely be resolved by the Supreme Court eventually, multiple legal experts have said in recent months.
Author Expertise and Experience:
Stephen Silver is a Senior Editor for 19FortyFive. He is an award-winning journalist, essayist and film critic, who is also a contributor to the Philadelphia Inquirer, the Jewish Telegraphic Agency, Broad Street Review and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. Stephen has authored thousands of articles over the years that focus on politics, technology, and the economy for over a decade. Follow him on X (formerly Twitter) at @StephenSilver, and subscribe to his Substack newsletter.
From the Vault
