A political activist’s desire to register a suggestive phrase targeting Donald Trump’s anatomy and policies is at the center of a Supreme Court case being heard Wednesday that will test the limits of the First Amendment.
Trump is not a party to the case, but his name will likely be tossed around constantly during oral arguments as the justices weigh whether a federal trademark statute that prevented the activist from registering “Trump Too Small” as a slogan for t-shirts without the former president’s explicit permission runs afoul of the First Amendment.
“The mark criticizes Trump by using a double entendre, invoking a widely publicized exchange from a 2016 Republican primary debate in which Trump commented about his anatomy, while also expressing Elster’s view about ‘the smallness of Donald Trump’s overall approach to governing as president of the United States,’” attorneys for the activist, Steve Elster, told the justices in court papers.
In arguments today, the justices will weigh a California man’s attempt to trademark a phrase mocking the former president and current Republican front-runner for 2024 as “too small.”
Following a day of arguments in social media cases with echoes of Trump, the Justice Department is supporting President Joe Biden’s once and possibly future rival in urging the court to deny a trademark for the suggestive phrase “Trump too small” that Steve Elster wants to put on T-shirts.
Government officials said the phrase “Trump too small” could still be used, just not trademarked because Trump had not consented to its use. But a federal appeals court said refusing trademark registration violated free speech rights.
