U.S. Supreme Court’s “Trump Too Small” Ruling Could Foretell Big Trouble for “Actual Malice”

Published June 2024

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

On June 13 the U.S. Supreme Court unanimously ruled that 15 U.S.C. § 1052(c), a provision of trademark law barring registrations of the name of a living person by someone other than that individual, does not violate free speech provisions of the First Amendment. Thus it upheld the U.S. Patent and Trademark Office’s rejection of a trademark application for “Trump too small,” a reference to an exchange between Donald Trump and Marco Rubio at a 2016 presidential debate.


But while the justices agreed that the provision is constitutional, they differed widely on the rationale. Thus, for example, while Justice Clarence Thomas wrote the court’s opinion, only two other justices joined it, and Thomas himself did not agree to one section of that opinion. Chief Justice Roberts and Justice Kavanaugh agreed with the opinion, except for the section that Thomas also rejected. The support for other parts of the main opinion among the justices, and their partial support of other justices’ concurring opinions, is a dizzying whirlwind.


The bottom line, as stated in Thomas’s opinion, is that “We hold only that history and tradition establish that the particular restriction before us, the names clause in §1052(c), does not violate the First Amendment.”


That “history and tradition” statement may be problematic. This approach towards determining whether a provision is or is not constitutional has come into favor among conservative legal scholars and judges, and has been used to hold a New York gun restriction unconstitutional, to rule that a football coach’s pre-game prayers were protected by the free religion provisions of the First Amendment, and to reverse the ruling in Roe v. Wade that the Constitution includes a right of privacy that protects a woman’s right to an abortion up until a certain point of fetus development.


In the “Trump too small” case, the leading opinion states that “[] history and tradition is sufficient to conclude that the names clause—a content-based, but viewpoint-neutral, trademark restriction—is compatible with the First Amendment.” Only three of justices—Clarence Thomas, Samuel Alito, and Chief Justice John Roberts—appear to agree with this statement. The remaining justices made various points in their opinions that application of the “history and tradition” analysis in this case is unnecessary and/or results-driven.


But while the use of the “history and tradition” analysis was not endorsed by a majority of the court in the “Trump too small” case, it marks the first time the approach has been explicitly applied to the free speech provisions of the First Amendment.


And that poses a potential danger to other First Amendment issues, the such as the “actual malice” requirement in libel cases brought by public figures. After all, “actual malice” as a requirement in defamation cases was essentially created by the U.S. Supreme Court’s 1964 ruling in New York Times v. Sullivan (which itself was a unanimous opinion).


Some of the criticism of “actual malice” has been based its lack of a historical pedigree. In a 2019 opinion, Thomas wrote that “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. … Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”

In a 2021 dissent, Thomas wrote that “(t)his court’s pronouncement that the First Amendment requires public figures to establish actual malice bears ‘no relation to the text, history or structure of the Constitution.’” Justice Gorsuch also cited this history in his own dissent in the same case, adding that whether the Sullivan rationale “holds in a new era where the old economic model that supported reporters, fact-checking, and editorial oversight is disappearing.” But in 2021 the court also denied review in two libel cases that would have given the court the opportunity to revisit the Sullivan standard.

Thomas has been consistent in his attacks on the Sullivan standard, and Gorsuch has agreed with him. Now, two other justices—Alito and Roberts—have expressed support for using the “history and tradition” analysis in free speech cases, which may challenge Sullivan and the “actual malice” standard that it created.

And four justices is enough for the court to grant certiorari and accept a case that could do so.

Massive Verdict Vacated: A libel case that led to a $50 million jury verdict—apparently the largest libel verdict in state history, although an aberration—awarded in 2021 to the former Bluffton, S.C. mayor Lisa Sulka against government critic and gadfly Skip Hoagland has been settled and dismissed. The settlement was apparently agreed to by Hoagland’s insurance company, over his objection.  

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication, an affiliate of USC’s Joseph F. Rice School of Law and in an “of counsel” position at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.

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