Does The First Amendment Protect The Right To Make Fun Of Trump's 'Alleged' Small Hands?

They're tiny. I know it. You know it. Everyone knows it.

Politics has been thought of as a [redacted] measuring contest for quite some time. Back in 2016, during the Republican presidential primary debate, Marco Rubio and Donald Trump decided to cut metaphors and get straight to inferential measuring -- Rubio's jab about Donald Trump's (allegedly) small hands became the Wiz wears cool pants "beef" for politicos and was memed as such. Someone was enterprising enough to try and trademark shirts based on the infamous name calling to make a buck or two. Now they are headed to the Supreme Court to determine if that was legal or not.

The Supreme Court will decide whether the First Amendment protects a t-shirt maker's right to register the trademark "TRUMP TOO SMALL" as a satirical reference to the infamous debate exchange in which Trump and Rubio discussed the size of their genitals. https://t.co/5t2Iaaybxd pic.twitter.com/Wq8eNBNG4y

-- Mark Joseph Stern (@mjs_DC) June 5, 2023

It should be news to no one that Trump is no stranger to using someone's name to criticize them -- Sleepy Joe, Crooked Hilary, the list goes on. Shame that the man never went on to trademark his kindergarten-playground-level mocking on his own. He's really good at adopting other people's business models, like the time he followed in his father's footsteps and routinely turned away Black tenants. And that possibility also marks a deep tension of this case, between the right to exclude and free speech. From Reuters:

"The government has no legitimate interest in protecting the privacy of President Trump, the least private name in American life," and the right of publicity "cannot shield public figures from criticism," Circuit Judge Timothy Dyk wrote in that decision.

...

The Trademark Office, represented by President Joe Biden's Justice Department, pushed back against concerns about discouraging political speech in its petition for the Supreme Court to hear the matter.

"To the contrary, it is the registration of marks like respondent's - not the refusal to register them - that would 'chill' such speech," the trademark office said. "After all, a trademark gives its owner the right to prevent others from using the mark."

There is some truth to both sides. Not too long ago, Katy Perry lost a suit to a small Australia-based clothing designer selling Katie Perry apparel. Trump, who has been known to flip flop on prior occasions, may decide to bite the hand that mocks him and sell a line of Trump hand-based tees to compliment the grabbing ones that were big a few years back. Would it really make sense to force Trump to sue some guy over the right to use his own name on a t-shirt? I'd love to see it for the hilarity that would ensure, but it does strike as odd nonetheless. If prior Supreme Court opinions have been any indication of how this case will turn out, I'm sure that Ketanji Brown Jackson will be right and Alito will spout off whatever angle Fox news takes on the case.

US Supreme Court Takes Up Dispute Over 'Trump Too Small' Trademark [Reuters]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord(TM) in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.