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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: Remember back in twenty sixteen when Senator Marco Rubio and

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Speaker 1: former President Donald Trump were sparring over the size of

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Speaker 1: Trump's hands during the Republican primary. He's always calling me

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Speaker 1: little Marco, an alim guy.

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Speaker 2: He's talling me.

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Speaker 1: He's like six to two, which is why I don't

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Speaker 1: understand why his hands are the size of someone who's

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Speaker 1: five to two. Have you seen his hands? They're like this,

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Speaker 1: And you know what they say about men with small hands.

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Speaker 3: I've never heard of this one. Look at those hands?

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Speaker 4: Are they small hands? And he referred to my hands.

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Speaker 4: If they're small, something else must be small.

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Speaker 2: I guarantee you there's no problem.

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Speaker 1: I guarantee it may have been one of the low

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Speaker 1: points of that primary, and a California attorney wants to

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Speaker 1: trademark the phrase Trump too Small as a slogan for

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Speaker 1: T shirts and hats. The Trademark Office rejected Steve Elser's

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Speaker 1: trademark application, but then the Federal Circuit Court of Appeals

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Speaker 1: found that the phrase was entitled to trademark under First

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Speaker 1: Amendment protections for political commentary. Now, Elser will get to

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Speaker 1: argue his case to the Supreme Court. The justices have

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Speaker 1: agreed to take up this trademark dispute in the terms

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Speaker 1: starting in October. What's a little unusual is that in

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Speaker 1: this case the Biden administration is sort of on Trump's side,

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Speaker 1: defending the Patent Office's decision to reject the trademark application,

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Speaker 1: joining me his first Amendment law expert Eugene Volik, a

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Speaker 1: professor at UCLA Law School. This case goes back to

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Speaker 1: twenty eighteen and has been through several layers of decisions.

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Speaker 1: So first the Trademark Office rejected the application.

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Speaker 4: Why well, the Federal Trademark Statute has the limitation in

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Speaker 4: its registration provision, and it says that you can't register

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Speaker 4: or a mark that consists of, or comprises a name, portrait,

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Speaker 4: or signature identifying a particular living individual except by his

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Speaker 4: written consent. Now, you could still use a trademark with

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Speaker 4: somebody else's name. Let's say, for example, you write an

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Speaker 4: unauthorized biography of someone. You can use that person's name

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Speaker 4: in the name of the biography and promotion for the biography.

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Speaker 4: You can do that. Likewise, you can actually even use

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Speaker 4: it as a trademark, it's not as a registered one.

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Speaker 4: But if you want the benefits of a registered mark,

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Speaker 4: that is unavailable by law in a situation where the

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Speaker 4: mark consists of or comprises another person's name, again unless

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Speaker 4: you have their written consent. So this is a particular

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Speaker 4: kind of benefit program that the government operates. It's not

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Speaker 4: really a speech restriction as such. Nobody's being barred from it,

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Speaker 4: as I said, using people's names this way. But it

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Speaker 4: provides this valuable benefit of trademark registration to most trademarks,

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Speaker 4: but not to one that fall within this exception. And

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Speaker 4: the question is whether that's unconstitutional, whether once the government

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Speaker 4: sets up this kind of trademark registration program, whether it

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Speaker 4: can then exclude certain kinds of marks from this benefit,

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Speaker 4: or whether it has to provide it even handedly regardless

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Speaker 4: of the content of the MOK.

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Speaker 1: So then, was the Federal Circuit's decision finding that the

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Speaker 1: phrase was entitled to trademark. Was that a surprise then?

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Speaker 4: Well, I think people who have been following this area

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Speaker 4: were aware that there's uncertain here. I don't think people

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Speaker 4: would have been surprised by decision either way. And I

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Speaker 4: think it's also hard to predict which where the Supreme

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Speaker 4: Court will go on this. So, the Supreme Court has

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Speaker 4: made clear that viewpoint based exclusions of trademarks from trademark registration,

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Speaker 4: like other viewpoint based exclusions from benefit programs that promote

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Speaker 4: private speech, are on constitutional. So in mentality tam, the

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Speaker 4: Court held in an exclude usion for derogatory marks, including

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Speaker 4: ones that are seen as derogatory or a racial or

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Speaker 4: an ethnic group, that that's unconstitutional. That involved the Asian

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Speaker 4: American dance band the Slans, who wanted to register that mark,

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Speaker 4: and the statute was interpreted by the Patent Trademark Office

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Speaker 4: as prohibiting that because some people perceived that as a

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Speaker 4: racial slur. In fact, the band was trying to kind

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Speaker 4: of reclaim that precisely because it had historically been a

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Speaker 4: racial slur. The Supreme Court said, well, it's unconstitutional to

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Speaker 4: treat allegedly racist marks differently from other marks, because that's

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Speaker 4: viewpoint based. In a later case, Jankov Brunetti, the Court

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Speaker 4: likewise struck down a ban on registering scandalous or immoral trademarks.

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Speaker 4: In that case, there was a mark that consisted of

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Speaker 4: the letters FUC piece. The PTO concluded that was scandalous

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Speaker 4: or immoral because of the its vulgar nature. And the

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Speaker 4: Supreme Court said, well, no, excluding scandalous or moral marks.

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Speaker 4: That's viewpoint based. But the Court didn't resolve what happens

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Speaker 4: if Congress comes back and says, well, we're not excluding

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Speaker 4: scandalous or immoral marks, just particular kinds of vulgarities. Have

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Speaker 4: a list of vulgar words that are vulgar not because

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Speaker 4: of the viewpoint they expressed, but because they're connected to, say,

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Speaker 4: sex or excretion for some such The Court did not

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Speaker 4: resolve that question. And in a sense, that question is

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Speaker 4: arising in this very case. What happens if there's an

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Speaker 4: exclusion that's content based, whether it's for vulgarity or for

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Speaker 4: a person's name, But is viewpoint neutral?

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Speaker 1: And will you explain why the Federal Circuit came to

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Speaker 1: the conclusion that the phrase was entitled to trademark protection.

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Speaker 4: Well, the Federal Circuit said, look, we read these two

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Speaker 4: cases Jankovi Bernetti and mettality tem and we think that

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Speaker 4: they support a rule that, generally speaking, the trademark registration

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Speaker 4: system has to be content neutral, not just viewpoint neutral,

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Speaker 4: but content neutral, because even though it's basically a benefit

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Speaker 4: program for speech. It's also a form of regulation of

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Speaker 4: speech because it excludes certain trademarks from this important benefit,

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Speaker 4: which would end up deterring people from using those marks

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Speaker 4: if they know they're not registrable. So the Federal Circuit

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Speaker 4: concluded that the right way of reading the Supreme Court

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Speaker 4: precedents is generally speaking, at least presumptively forbidding content discrimination

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Speaker 4: in the trademark registration system. Well, there's I think another

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Speaker 4: way of reading them, and that's what the federal government

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Speaker 4: is saying that they should be read this way that

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Speaker 4: actually content discrimination is okay. Here again, because this is

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Speaker 4: a restriction and access to a benefit program rather than

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Speaker 4: outright prohibition on speech, content discrimination is okay. It's just

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Speaker 4: viewpoint discrimination that is unconstitutional. Here's an analogy that might

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Speaker 4: support the government. In the tax code. There's, of course,

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Speaker 4: the charitable tax exemption, which is available to a wide

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Speaker 4: rate of groups that speak educational institutions, but also groups

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Speaker 4: that try to educate the public about particular ideological perspectives.

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Speaker 4: But the tax exemption is not available to groups that electioneer,

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Speaker 4: that urge the election or defeat of a particular candidate,

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Speaker 4: and the Supreme Court has said, well, that's constitutionally permissible

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Speaker 4: because this tax exemption is a benefit program. It gives

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Speaker 4: you kind of like a subsidy, essentially a matching grand

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Speaker 4: subsidy from the government that's economically equivalent to tax exemption.

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Speaker 4: And when the government is providing this sort of benefit program,

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Speaker 4: it can impose content based restrictions so long as their

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Speaker 4: viewpoint neutral. The government can't say, well, deny tax exemption

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Speaker 4: to supposedly racist groups or anti police groups or anti

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Speaker 4: war groups. It can't be viewpoint discriminatory there. But when

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Speaker 4: it comes to content discrimination that's viewpoint neutral again, such

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Speaker 4: as no electioneering, that's permissible simply because the government doesn't

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Speaker 4: have to subsidize electioneering, doesn't have to subsidize a particular

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Speaker 4: subject that it doesn't want to subsidize. So one could

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Speaker 4: make a similar argument. That's pretty much the argument of

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Speaker 4: the federal government is making in this case that likewise,

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Speaker 4: the government doesn't have to support these kinds of marks

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Speaker 4: that use other people's names with the permission, doesn't have

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Speaker 4: to support those marks through the trademark registration system.

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Speaker 1: So which position do you think is correct?

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Speaker 4: Well, I think it's really hard to tell. I think

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Speaker 4: there are plausible arguments for both sides, both based on

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Speaker 4: the reasoning and the court's precedence, and based on sort

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Speaker 4: First Amendment policy arguments. On the one hand, content discrimination

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Speaker 4: is generally presumptively unconstitutional. For example, of sign regulations, the

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Speaker 4: government can't get away with saying, Okay, we're going to

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Speaker 4: ban political sign or, for that matter, we're going to

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Speaker 4: give a preference to political signs in regulations, say of billboards.

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Speaker 4: That may be a viewpoint neutral restriction, but it's a

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Speaker 4: content based one, and that's presumptively unconstitutional. On the other hand,

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Speaker 4: when it comes to rules that don't forbid speech or

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Speaker 4: even impose taxes on speech, but simply say, look, you

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Speaker 4: know we're going to provide benefits for certain kind of speech.

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Speaker 4: Whether the benefit is access to funds, let's say, access

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Speaker 4: to a tax exemption, access to trademark registration. There is

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Speaker 4: a good deal of authority that says that those kinds

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Speaker 4: of benefits programs can be allocated in content based ways

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Speaker 4: so long as their viewpoint neutral. I should say, though,

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Speaker 4: of course, the climate, the person seeking to register the market,

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Speaker 4: and the Federal circuit below rejected the benefits framing of this.

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Speaker 4: They said, Look, this isn't it like a traditional benefit

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Speaker 4: program like money being paid or access to government property.

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Speaker 4: The administration of the trademark system shouldn't be viewed as

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Speaker 4: that kind of government benefit.

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Speaker 1: So you said, this is hard to predict, But considering

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Speaker 1: the Supreme Court's recent favoring First Amendment rights over federal

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Speaker 1: trademark restrictions, is it taking the case to reverse the

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Speaker 1: Federal circuit?

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Speaker 4: Well, I think it's very hard to tell. Because the

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Speaker 4: federal government sought the review of the case, and it

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Speaker 4: did so based on the federal statute being invalidated in

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Speaker 4: part by the federal court below. That's usually a pretty

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Speaker 4: wrong reason for the Supreme Court to take the case,

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Speaker 4: regardless of what it thinks of the result below. So

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Speaker 4: I don't think we can infer much from the courts

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Speaker 4: taking the case, because again it's the norm. When the

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Speaker 4: federal judicial branch of the lower courts invalidate the work

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Speaker 4: of the federal legislature and the executive branch, the Supreme

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Speaker 4: Court often takes the view, usually takes the view. Well,

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Speaker 4: it should be up to the Supreme Court to finally

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Speaker 4: decide that rather than a lower court do that.

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Speaker 1: Thanks so much, for joining us on the show again.

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Speaker 1: That's Professor Eugene Vollak of UCLA Law School. The Supreme

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Speaker 1: Court ruled against unions again, although it could have been

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Speaker 1: worse for organized labor. The dispute was about the pressure

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Speaker 1: that organized labor can exert during a strike in a

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Speaker 1: case about unionized drivers who walked off the job with

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Speaker 1: their trucks full of wet concrete. The decision united liberal

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Speaker 1: and conservative justices in the latest laws for unions at

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Speaker 1: the High Court. It was an ad to one decision,

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Speaker 1: with the newest Justice Katanji Brown Jackson standing alone and

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Speaker 1: writing her first assent. The majority found that federal laboral

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Speaker 1: law doesn't prevent a ready mixed concrete company from suing

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Speaker 1: a union in state court for alleged intentional destruction of

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Speaker 1: property during a strike. The opinion focused on the Teamsters

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Speaker 1: affiliate's duty to take precautions to protect against damage to

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Speaker 1: the employer's property, a theme during the oral arguments. Here's

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Speaker 1: Chief Justice John Roberts, Well, but what.

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Speaker 3: You're saying is Garman might not cover may or may

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Speaker 3: not cover the fact that the milk is going to

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Speaker 3: go sour or whatever it is. But we know that

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Speaker 3: it doesn't he's got these mixed up, but it does

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Speaker 3: cover somebody who deliberately opens all the containers of milk

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Speaker 3: and pours them down the drain. It just seems to

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Speaker 3: me that intentional destruction of property is a much more

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Speaker 3: serious concern than failure to take reasonable precautions.

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Speaker 1: In her descent, Justice Jackson highlighted that the NLRB's General

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Speaker 1: Council had issued a complaint alleging that the union's strike

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Speaker 1: conduct is protected by federal labor law, a point she

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Speaker 1: referred to repeatedly during the arguments.

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Speaker 5: The Regional Director and the General Council, they've looked at

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Speaker 5: all the facts and they file a complaint which indicates

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Speaker 5: that someone has made an initial assessment along the same

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Speaker 5: lines as arguable that we have protected conduct here. I

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Speaker 5: don't understand why the easiest way for all of us

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Speaker 5: to be looking at this is in this particular kind

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Speaker 5: of scenario where we have a complaint, then the issue

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Speaker 5: of arguable is satisfied and we allow the board to

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Speaker 5: continue to investigate and it can reach the actual determination

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Speaker 5: that you're talking about.

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Speaker 1: Joining me is labor law expert Kate Andreas, a professor

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Speaker 1: at Columbia Law school tell us broadly about the decision.

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Speaker 2: Yeah, so this with an eight one opinion holding for

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Speaker 2: the employer. The question was whether an employer can sue

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Speaker 2: its employees or sue the union under state tort law

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Speaker 2: for damages that the employer incurred as a result of

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Speaker 2: a strike. And what happened here was that the workers

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Speaker 2: were drivers. They drive concrete mixers, and they decided to

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Speaker 2: go out on strikes. When the time came from the strike,

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Speaker 2: some of the drivers were already out on the road.

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Speaker 2: They drove their trucks back to Glacier's headquarters and walked

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Speaker 2: off the job. And the company was upset because it

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Speaker 2: was unable to deliver the concrete and some of it

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Speaker 2: hardened and basically meant that the company lost all the

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Speaker 2: concrete and put its trucks at risk as well. That's

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Speaker 2: at least what the company alleged. And the company sued

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Speaker 2: the union and state court for torchise destruction of its property.

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Speaker 2: And the union said, hey, wait, you can't sue us

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Speaker 2: because this is a strike, and a strike is protected

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Speaker 2: by the NLRIA. And when conduct is protected or arguably

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Speaker 2: protected by the NRA, the National Labor Relations Law, state

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Speaker 2: law is preempted state tort suit can't go ahead. This

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Speaker 2: has to basically be resolved before the NRB. The Washington

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Speaker 2: Supreme Court agreed with the union, and then the Supreme

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Speaker 2: Court reversed.

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Speaker 1: Why did the Supreme Court reverse? What was the opinion

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Speaker 1: focused on?

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Speaker 2: The opinion basically said, this conduct, the particular conduct that

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Speaker 2: these workers engaged in, was not protected by the NRA,

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Speaker 2: not even arguably protected by the NLRA, and because it

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Speaker 2: wasn't even arguably protected by the NLRA, the suit could

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Speaker 2: go ahead. The opinion is actually pretty narrowly written, and

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Speaker 2: it's not holding that strikes are never protected by the

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Speaker 2: NLRA or that state tourtsuit can always go ahead when

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Speaker 2: there's damage resulting from a strike. Simply held that because

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Speaker 2: under these backs, the conduct that the employer pled in

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Speaker 2: the complaint hasn't been litigated, so we don't know if

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Speaker 2: that's actually what happened, That the conduct that was in

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Speaker 2: the employer's complaint doesn't amount to conduct that's even arguably

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Speaker 2: protected by the statute, and therefore the state tortsuit could

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Speaker 2: go forward.

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Speaker 1: How much of a blow is this decision to unions

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Speaker 1: or is it a blow at all? Is it confined

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Speaker 1: to its facts here.

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Speaker 2: Yeah, So I mean, first of all, I should say

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Speaker 2: that I think the discent gets it right. It's a

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Speaker 2: single author descent by Justice Jackson, and she basically says, look,

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Speaker 2: this conduct actually is arguably protected by the NLRA, and

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Speaker 2: we know that because the NLRB's General Council has actually

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Speaker 2: issued a complaint in the case. So because this conduct

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Speaker 2: is arguably protected, the state tortsuit can't go ahead, and

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Speaker 2: the agency should be allowed to do its job. We

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Speaker 2: don't want to have a situation where you have state

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Speaker 2: courts acting and the agency acting at the same time

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Speaker 2: and multiple conflicting rulings. And that's what the President has

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Speaker 2: always been. So my view is that Justice Jackson's dissent

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Speaker 2: is correct. That said, the majority opinion is pretty narrow

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Speaker 2: because it's really fact dependent. It emphasizes on these partitionsicular facts,

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Speaker 2: that what the again, as they are alleged by the employer,

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Speaker 2: that the union here evinced an intent to take affirmative

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Speaker 2: stepths to do harm to the employer's property, and that

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Speaker 2: that makes the conduct unprotected. So it's not like a

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Speaker 2: normal strike that here, according to the facts alleged by

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Speaker 2: the company, the team surce took affirmative stepths to endangered

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Speaker 2: Glacier's property. They failed to take any reasonable precautions to

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Speaker 2: protect the property, and that's what renders this conduct unprotected

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Speaker 2: and therefore subject to state towards suits. So I don't

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Speaker 2: think that this opinion in and of itself is a

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Speaker 2: major blow to unions or to workers. However, the fact

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Speaker 2: that the Court didn't just apply long standing precedent correctly,

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Speaker 2: as I think Justice Jackson does is worrisome, and it's

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Speaker 2: sort of another step in a long series of cases

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Speaker 2: where the Court is hostile to unions and hostile to workers.

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Speaker 2: And then the other notable thing is that they're a

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Speaker 2: two concurrences joined by pre justices altogether Justice as Thomas,

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Speaker 2: Alito and Gorses, and they would have gone much further

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Speaker 2: to change to drastically change labor law and to make

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Speaker 2: it much more possible for businesses to do unions in

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Speaker 2: state court, to really change preemption laws.

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Speaker 1: So the union's actually dodged a bullet, then.

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Speaker 2: I think that is the case in this Yes, So.

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Speaker 1: The Teamsters General President Sean O'Brien said, the political hacks

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Speaker 1: at the Supreme Court have again voted in favor of

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Speaker 1: corporations over working people. When was the last time the

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Speaker 1: Supreme Court ruled in favor of a union.

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Speaker 2: That is a good question. I am not sure of

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Speaker 2: the answer to that. In a while, I can't think

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Speaker 2: of a recent case. Doesn't mean there hasn't been one,

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Speaker 2: but it certainly hasn't been an important one. In contrast,

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Speaker 2: they've taken a number of really anti union stept in

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Speaker 2: prior decisions, so ranging from the ruling just a couple

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Speaker 2: of years ago holding that it's a taking of employer's

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Speaker 2: property to allow union organizers' access to farms in California,

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Speaker 2: that that constitutes a violation of the takings clause, to

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Speaker 2: the Supreme Court's opinion in Janice, where the Court held

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Speaker 2: that workers who were covered by collective bargaining agreements public

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Speaker 2: sector workers who are covered by collective bargaining agreements cannot

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Speaker 2: be required to pay for the cost of bargaining and

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Speaker 2: representation even though they get the benefits of those contracts,

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Speaker 2: that that violates the First Amendment. In a major departure

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Speaker 2: from president, to the Court's ruling in the Epics Systems case,

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Speaker 2: where they said that workers can be forced to sign

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Speaker 2: away their rights to proceed through class actions either an

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Speaker 2: arbitration or in litigation that that doesn't violate the NLRA.

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Speaker 2: So there's been a long series of anti worker, anti

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Speaker 2: union opinions. This is another one. This one just isn't

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Speaker 2: as dramatic or important in terms of its precedential value,

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Speaker 2: but it certainly does indicate that there's more to come,

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Speaker 2: at least from the most conservative justice.

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Speaker 1: So you agree with Justice Jackson in her dissent when

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Speaker 1: she said the ruling risks erosion of the right to strike.

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Speaker 2: Yes, well, I agree with Jessice Jackson in a couple

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Speaker 2: of perspects. First, I think she's absolutely right that the

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Speaker 2: precedent strongly required. The opposite outcome is that it required

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Speaker 2: a finding that the tortsuit was preempted. I also think

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Speaker 2: she's right to emphasize the importance of the right to

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Speaker 2: strike and the fact that when employees engage in a

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Speaker 2: right to strike something that's protected by the statute the NLRA,

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Speaker 2: it's protected under international law. When workers engage in strikes,

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Speaker 2: there is often some damage to employer property, and that

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Speaker 2: does not render the strike unprotected. So Justice Jackson wrote,

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Speaker 2: workers are not indentured servants bound to continue laboring until

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Speaker 2: any planned work stoppage would be as painless as possible

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Speaker 2: for their master. She's emphasizing that there is a really

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Speaker 2: important right to strike, that workers can engage in that right,

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Speaker 2: and that might harm employer property, and that is part

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Speaker 2: of the process. And there are certainly indications in the

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Speaker 2: majority of opinion that not all justices the it the

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Speaker 2: same way, and so there's a threat in the opinion

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Speaker 2: to further erode the right to strike. But in and

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Speaker 2: of itself, the very fact found opinion is unlikely to

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Speaker 2: have a lot of effect unless we see lower courts

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Speaker 2: extend it to other situations.

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Speaker 1: I don't know if it's an indication of how strongly

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Speaker 1: Justice Jackson felt about this, but this is her first

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Speaker 1: solo descent, and it's the first solo descent from a

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Speaker 1: first term justice since Clarence Thomas in nineteen ninety one.

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Speaker 1: Fun fact, it's an.

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Speaker 2: Excellent descent, very clearly and powerfully written, and that also

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Speaker 2: makes a compelling case for why workers' rights really need

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Speaker 2: to be better protected under our jurisprudence.

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Speaker 1: This is just that the union can be sued. It

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Speaker 1: has to go to trial yet.

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Speaker 2: Right, so it's unclear what's going to happen next, both

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Speaker 2: in terms of what happens with this particular case and

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Speaker 2: then more generally with the law. So with this case,

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Speaker 2: it's possible that the state court will put the tort

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Speaker 2: suit on hold because after the State Court issued it's ruling,

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Speaker 2: the NLRB's General Council issued a complaint. So it's possible

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Speaker 2: that the state court will say, you know what, we

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Speaker 2: still think we should put this portsuit on hold until

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Speaker 2: the NLRB's proceedings finished, or it could let the case

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Speaker 2: go forward, in which case there would then be fact

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Speaker 2: finding to determine whether, in fact the strike activity is

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Speaker 2: arguably protected or not, and if it is arguably protected,

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Speaker 2: or if it is protected, then the suit would not

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Speaker 2: go forward. So at this point, one thing that makes

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Speaker 2: this case somewhat odds we're completely relying on the employer's

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Speaker 2: description of the facts, because that's the stage of the pleating,

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Speaker 2: right where all the facts have to be taken as true.

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Speaker 2: So the employer says, the union did X, Y and Z,

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Speaker 2: and for these purposes we're all assuming that that's true.

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Speaker 2: But once the case goes back on remand either will

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Speaker 2: get put on hold while the NLRB's proceedings contain you,

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Speaker 2: or there will be factual development and it will be termined,

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Speaker 2: whether or not the union actually is responsible for any

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Speaker 2: of the harm. The bottom line is that this court

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Speaker 2: is not friendly to workers and not friendly to unions,

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Speaker 2: and that this case is another example of that. However,

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Speaker 2: it is not a major blow and workers should not

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Speaker 2: take this opinion as a reason not to strike. Still

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Speaker 2: absolutely have the right to strike under the nlr A,

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Speaker 2: and they should exercise that right when they need to.

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Speaker 1: Thanks so much, Kate. That's Professor Kate Andreas of Columbia

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Speaker 1: Law School, and that's it for this edition of the

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Speaker 1: Bloomberg Law Show. Remember you can always get the latest

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Speaker 1: legal news by subscribing to the Bloomberg Law Podcast or

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Speaker 1: I'm joom Brasso, and you're listening to Bloomberg