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
Tree
First
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.
Olga