In This Case, Biden Administration Looks to Protect Trump

President Biden's Justice Department has taken former President Donald Trump to task for his handling of classified documents and efforts to overturn the results of the 2020 election. But in another court case, the Biden administration looks "to protect Trump," Reuters reports. The case before the Supreme Court centers around a California lawyer who wants to trademark the mocking phrase "Trump Too Small" so he can put it on T-shirts. The phrase was inspired by a March 2016 exchange between Trump and Sen. Marco Rubio. Trump had previously called Rubio "Little Marco," with Rubio responding that Trump had small hands. Trump then responded, "If they're small, something else must be small. I guarantee you, there's no problem."

Steve Elster told the Supreme Court that "Trump Too Small" makes use of the double entendre to criticize "the smallness of Donald Trump's overall approach to governing." He first sought to trademark the phrase in 2018. The US Patent and Trademark Office denied his request, citing a 1946 federal law that forbids trademarks including a person's name without their consent. It said the law was intended to prevent one's name "being exploited for another's commercial gain." However, the US Court of Appeals for the Federal Circuit reversed the decision in February 2022, stating the denial violated Elster's free speech rights, per NBC News. The government does not have an interest "in restricting speech critical of government officials or public figures," the court found.

In January, the Biden administration asked the Supreme Court to get involved, essentially backing Trump, who is not personally involved in the case. The court has recently backed free speech rights in trademark cases, striking down laws barring trademarks that "disparage" and are considered "immoral." But US Solicitor General Elizabeth Prelogar argues the 1946 law is different and doesn't restrict speech "based on an applicant's viewpoint," per Reuters. (The law has also been used to prevent use of a person's name in trademarks with positive messages, including "I Stump For Trump.") Elster counters that the law "effectively precludes the registration of any mark that criticizes public figures—even as it allows them to register their own positive messages about themselves." Oral arguments begin Wednesday. (More US Supreme Court stories.)