‘Trump Too Small’: Supreme Court Hearing Case Today About T-Shirt Criticizing Ex-President

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The Supreme Court is proceeding oral arguments Wednesday successful a lawsuit complete a T-shirt that mocked erstwhile President Donald Trump, arsenic justices see whether trademarks tin beryllium granted that knock nationalist officials.

Sen. Marco Rubio (R-Fla.) (left) and then-candidate Donald Trump reason during nan Republican ... [+] statesmanlike statement connected February 25, 2016 successful Houston, Texas.

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Key Facts

The tribunal will perceive Vidal v. Elster, which concerns Steve Elster’s effort to trademark nan building “Trump Too Small” for usage connected a t-shirt, referencing a comment Sen. Marco Rubio (R-Fla.) made during a statesmanlike statement successful 2016, successful which he joked astir nan size of Trump’s hands and added, “And you cognize what they opportunity astir guys pinch mini hands.”

Elster’s t-shirt criticizes Trump’s governmental agenda, saying connected nan backmost of nan garment that “Trump’s package is excessively small” connected a assortment of governmental issues, but his trademark was initially denied nether nan Lanham Act, a federal law that bans trademarking thing that “consists of aliases comprises a name, portrait, aliases signature identifying a peculiar surviving individual isolated from by his written consent.”

An appeals tribunal past allowed Elster’s trademark, agreeing pinch his argument that rejecting it violated his First Amendment rights, starring nan national authorities to ask nan Supreme Court to return up nan case.

The authorities argues nan rule doesn’t infringe connected state of reside and alternatively conscionable intends that group can’t use commercially disconnected of personification other without their consent, calling it “a reasonable, viewpoint-neutral condition” that “is accordant pinch nan First Amendment.”

The tribunal will specifically see whether nan rule connected prohibiting trademarks for surviving individuals without their consent violates nan First Amendment erstwhile said trademark “contains disapproval of a authorities charismatic aliases surviving figure,” meaning nan tribunal could make it easier for much trademarks to beryllium issued that knock nationalist officials and different surviving persons if they broadside pinch Elster.

What To Watch For

The tribunal will perceive oral arguments successful nan lawsuit Wednesday, though it’s improbable to rumor a ruling for astatine slightest a fewer months, sometime earlier nan court’s word ends successful June 2024.

What We Don’t Know

What different Trump-related cases nan Supreme Court will perceive this term. While they’re not connected nan court’s docket yet, nan Supreme Court is wide expected to see different cases related to nan ex-president’s 2024 tally and ineligible issues successful nan coming months, including his effort to person criminal charges thrown retired successful nan national lawsuit complete him trying to overturn nan 2020 election, and challenges seeking to disqualify Trump from nan presidency nether nan 14th Amendment. “Are they going to beryllium forced to reside those cases? I deliberation nan reply is yes,” George Washington University rule professor Paul Schiff Berman told Politico. “Whether nan Supreme Court wants to get progressive successful issues relating to nan election, it’s going to beryllium very difficult to contradict … each 1 of these Trump-related appeals that we expect to spot happening.”

Surprising Fact

After Rubio made nan remark astir Trump’s hands during nan 2016 debate, Trump past responded a fewer days later connected a different statement stage. “Look astatine those hands. Are they mini hands? And he referred to my hands if they’re small, thing other must beryllium small,” Trump said. “I guarantee you there’s nary problem. I guarantee you.”


The Motion Picture Association (MPA) revenge an amicus brief successful nan lawsuit connected behalf of awesome studios for illustration Paramount and Disney, which notes nan lawsuit could person an effect connected really their products picture surviving people. The authorities argues successful nan lawsuit that nan Lanham Act arsenic it presently stands protects people’s “right to publicity,” which bars nan “appropriation for commercialized purposes of a person’s personality without his consent,” nan MPA noted. That’s applicable to nan group because studios continually look lawsuits from group who are depicted successful films aliases judge they’ve inspired characters, and nan MPA based on that while specified lawsuits person been unsuccessful, they want nan tribunal to reside nan narration betwixt nan correct to publicity and nan First Amendment truthful there’s much clarity connected it going forward. “The MPA has a beardown liking successful ensuring that nan First Amendment provides robust protection against right-of-publicity claims seeking to soundlessness its members’ imaginative expression,” nan group wrote.

Key Background

Elster applied for nan “Trump excessively small” trademark successful 2018, and an examining lawyer for nan U.S. Patent and Trademark Office initially rejected nan exertion because “the usage of nan sanction ‘TRUMP’ successful nan projected people would beryllium construed by nan nationalist arsenic a reference to Donald Trump,” which isn’t allowed without Trump’s written consent. An appeals committee upheld that determination earlier Elster took nan conflict to national court, starring to nan ruling successful his favor. The lawsuit marks nan latest successful a bid of First Amendment-related trademark disputes that person travel earlier nan Supreme Court. The tribunal ruled successful 2017 that a trademark statute that prohibited thing that “disparage[s]” group was unconstitutional, successful a situation brought by a set called “The Slants,” and successful 2019 nan tribunal struck down a different facet of trademark rule that barred “immoral” aliases “scandalous” materials. In its astir caller term, nan tribunal ruled against a canine artifact that was made to look for illustration a vessel of Jack Daniel’s whiskey—calling itself “Bad Spaniels”—finding nan artifact constituted trademark infringement contempt its “lighthearted, dog-related alterations.”

Further Reading

Supreme Court Will Decide Whether T-Shirts Criticizing Trump Are Banned By Trademark Law (Forbes)

New Supreme Court Term Begins Today — Here Are The Biggest Cases To Watch (Forbes)

Trump fights loom ample for a Supreme Court that has tried to disregard him (Politico)

Supreme Court Rules Against Dog Toy Resembling Liquor Bottle (New York Times)

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