In their arguments Wednesday, Biden administration lawyers urged the court to deny trademarking of the disputed T-shirts, but their position was unrelated to the message, which is critical of the former president.
Since 1946, Congress has prohibited the registration of a trademark that includes a name or image that identifies “a particular living individual,” administration lawyers said.
When adopting this provision, lawmakers were particularly interested in preventing the use of a president’s or former president’s name as a means of advertising products. They cited examples such as “George Washington” coffee or “Abe Lincoln” gin.
Deputy Attorney General Malcolm Stewart described a trademark as “a condition of a federal benefit, not a restriction on free speech.”
He said California attorney and T-shirt entrepreneur Steve Elster has the right to sell his T-shirts with the slogan «Trump Too Small» but not «an exclusive right» to the phrase.
Elster said he was amused in 2016 when Republican presidential candidates exchanged comments about the size of Trump’s hands during a debate. Florida Sen. Marco Rubio, whom Trump had mocked as “little Marco,” asked Trump to raise his hands, which he did.
After Trump won the election, Elster decided to sell T-shirts with the phrase «Trump too small,» criticizing Trump’s achievements on civil rights, the environment and other issues.
He was free to do so, but the Patent and Copyright Office denied his request to register the phrase for his exclusive use.
When he appealed the denial, a federal appeals court ruled that his signature phrase was political commentary protected by the First Amendment.
Attorney General Elizabeth Prelogar appealed on behalf of the government and urged the Supreme Court to overturn that decision.
In his arguments Wednesday, Justice Clarence Thomas said he did not see how the denial of a trademark restricted free speech, since Elster was free to sell his T-shirts and use the phrase.
Chief Justice John G. Roberts Jr. said upholding Elster’s trademark could restrict free speech because it would prevent others from using the disputed phrase.
Justice Brett M. Kavanaugh said it was reasonable for Congress to decide not to help others profit from the use of a person’s name.
