Hopefully, no one will get slapped in the face over this joke.
The post A Free Speech Case Over A Dog Toy? Okay, I’ll Bite. appeared first on Above the Law.
How ought the government regulate goofing around? It is a serious question with constitutional import. Take, for example, the time that a man was arrested for poking some likely deserved fun at a police department. Cut and clear violation of this man’s right to free speech, right? Well, the Supreme Court decided not to weigh in on that. However, they may answer some of the remaining questions surrounding how protected the right to speech as parody is soon. From Reuters:
A trademark dispute over a poop-themed dog toy shaped like a Jack Daniel’s whiskey bottle coming before the U.S. Supreme Court could redefine how the judiciary applies constitutional free speech rights to trademark law.
In a case to be argued on Wednesday, the nine justices are expected to use this legal dogfight to clarify the line between a parody protected by the U.S. Constitution’s First Amendment and a trademark-infringing ripoff, with repercussions extending beyond booze and pet accessories. A ruling is due by the end of June.
Deciding to take a case about a dog toy maker and a liquor company is obviously less politically charged than a guy ridiculing the executive branch. Nonetheless, it is still an occasion for caution. This wouldn’t be the first time the YOLO Court throws down a constitutional decision that has unexpected implications for other areas — remember that time when SCOTUS overthrew Roe and it made people really uneasy about the future of their interracial marriages? It would be naïve to assume that this case about booze and pet accessories is just a case about booze and pet accessories.
“This is an interesting case because it’s a court that does care about the First Amendment but also cares about business,” said Elizabeth Brannen, a partner at the law firm Stris & Maher who has worked on intellectual property cases before the Supreme Court. “And this is a case where those interests intersect in a way that’s kind of hard to sort out.”
The toy mimics Lynchburg, Tennessee-based Jack Daniel’s famous whiskey bottles with humorous dog-themed alterations – replacing “Old No. 7” with “the Old No. 2, on your Tennessee Carpet” and alcohol descriptions with “43% Poo By Vol.” and “100% Smelly.”
“Jack Daniel’s loves dogs and appreciates a good joke as much as anyone,” the company told the justices in a brief. “But Jack Daniel’s likes its customers even more, and doesn’t want them confused or associating its fine whiskey with dog poop.”
It is easy to just look at the company’s response, appreciate its even-handedness and move on, but let’s be real here. Here are the bottles:
If Jack Daniel’s customers are at the point of “confusing” the bottle on the left for the bottle of the right, they’ve already drank too much of the stuff. I have bought my fair share of whisky and whiskey to boot. I’ve never shopped for my spirits at PetSmart, nor my local supermarket’s squeaky toy aisle. Does Jack Daniel’s really expect the Court to buy not only that there is some consumer out there who — despite expecting the heft of a glass liquor bottle — will just shrug their shoulders when their booze-to-be feels oddly reminiscent of an elementary school football and has the word carpet at the base, but that there are enough of these bozos to constitute an actual threat to the company’s IP?
I would hope that the Court would pay heed to the folks who’ve mastered parody to the point that it has repeatedly been confused with the gift of prophesy — The Onion. From an amicus brief written by America’s Second Finest News Source:
[S]ome forms of comedy don’t work unless the comedian is able to tell the joke with a straight face. Parody is the quintessential example. Parodists intentionally inhabit the rhetorical form of their target in order to exaggerate or implode it—and by doing so demonstrate the target’s illogic or absurdity.
Put simply, for parody to work, it has to plausibly mimic the original. The Sixth Circuit’s decision in this case would condition the First Amendment’s protection for parody upon a requirement that parodists explicitly say, up-front, that their work is nothing more than an elaborate fiction. But that would strip parody of the very thing that makes it function.
What happens if the Court decides for Jack Daniel’s? Presumably, they’d win that the shape of the bottle and maybe the placement of their stickers are so essentially Danielsian that any encroachment upon their form would be to violate their property right. What about a parody that is more business than pleasure? Say someone wanted to use parody to draw attention to arguments that Jack Daniel’s might be one of the names that people think of when they think about reparations, what then? Why stop at the physical bottles? Would a joke that Jack Daniel’s whiskey is so shitty that my dog has an evolutionary impulse to eat it when I pour it in the back yard risk “associating its fine whiskey with dog poop” enough for me to get sued? Because I will make that joke. Out of spite. Because that is what whiskey drinkers do. You think I enjoy drinking the brown hell-water Jack Daniel’s sells neat? No. But I drink it anyway. As a matter of principle.
In U.S. Supreme Court Jack Daniel’s Case, A Free Speech Fight Over A Dog Toy [Reuters]
Earlier: This Toy Company May Have Just Barked Up The Wrong Whiskey-Saturated TreeFirst As Parody, Then As Free Speech: The Onion Goes To The Supreme Court. It’s About As Awesome As You’d Suspect.
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™ 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.
