Justice Sotomayor Wonders Whether 'Trump Is A Thief' Trademark Is Legal

The hypothetical reference occurred during a hearing in a First Amendment case.

WASHINGTON ― In a closely watched trademark case the Supreme Court heard on Wednesday, Justice Sonia Sotomayor posed a hypothetical question starring none other than the man who’s about to be president.

The court wasn’t hearing a case involving Donald Trump or one of his businesses, but the justice wanted to know whether a trademark denouncing the real estate magnate might survive a challenge under the Constitution’s guarantee of free speech.

“If someone slanders or libels an individual by saying Trump, before he was a public figure, ‘Trump Is A Thief,’ and that becomes their trademark,” Sotomayor said, “[Then] even if they go to court and prove that that’s a libel or a slander, that trademark would still exist and would be capable of use, because otherwise, canceling it would be an abridgement of the First Amendment?”

“I believe that’s correct,” responded John Connell, the lawyer for The Slants, an Asian-American rock band that’s challenging a law the federal government used to deny it trademark protection after deciding the name amounted to a racial slur. The Supreme Court is reviewing a lower court’s 2015 decision that struck down that law as unconstitutional.

Sotomayor’s question was technical and, in keeping with the nature of oral arguments, her Trump reference appeared to be in the spur of the moment. But its timing was curious given Trump’s upcoming inauguration, which Sotomayor will attend on Friday alongside her colleagues.

A week after Trump was elected, Sotomayor imparted words about resilience and the continuity of government institutions at a public appearance.

We can’t afford for a president to fail,” she cautioned her audience, without referencing Trump by name. “And it is true, for those who tell us that we have to support that which he does which is right, and help guide him to those right decisions in whichever way we can find to do that.”

Trump’s cameo in the Supreme Court’s public record on Wednesday isn’t his first one.

In a campaign finance case in 1989, Justice Antonin Scalia and Justice Anthony Kennedy pondered whether Trump could self-fund — of all things — a political campaign.