Gift Shop Plus Summer 2021
Decency By Angie Avard Turner

What can you Sell? What Can You Name Your Business? What Can You Post?

FIRST AMENDMENT

The First Amendment is a cornerstone of American law and jurisprudence. It is most certainly one of the laws that distinguishes our country from others. The First Amendment guarantees freedom of expression, among other rights. Furthermore, it prohibits Congress from restricting the rights of the press or of individuals’ free speech rights.

That being said, there is speech that is not protected by the First Amendment, meaning that it can be restricted or that it receives little to no protection. These categories are speech that is considered, obscenity, fraud, child pornography, speech used to carry out illegal conduct, speech that incites imminent unlawful conduct, speech that violates intellectual property law, true threats, defamation, and commercial speech, for example advertising. Also, necessary to understand how speech impacts our culture is the knowledge that the First Amendment does not only apply to spoken words, but also to written words, and even expressions of speech that have no words. That makes the First Amendment a rather broad and far reaching protection of how those in the United States may express themselves.

DISPLAYING PRODUCTS FOR SALE

There is no law that states explicitly that one cannot sell or display profanity on products or within their place of business. However, profanity has always been an area where the courts have had issues. It can be a grey area so to speak. Although, generally speaking, one could display products with profanity, if those products were considered obscene or if those products incited violence, then maybe those products would not receive protection if someone decided to challenge them being displayed. This is not to say that one cannot display products that have obnoxious or repugnant sayings or even artwork, however when the speech crosses the line into obscene or inciteful, it will not be considered protected by the First Amendment.

NAMING A BUSINESS

While historically, both state and federal laws have prohibited businesses from naming their entity something indecent or something that would illicit pornographic thoughts. A recent 2019 Supreme Court case seems to suggest that law could be shifting. In that case, an apparel brand sought to register several trademarks that contained phrases with the F-word. Although the F-word was spelled incorrectly, it still phonetically was evident that it was pronounced like the F-word. In the majority ruling the Court stated that, “there are many immoral and scandalous ideas in the world and the First Amendment covers them all.” So, again, there is no bright line test. It seems in this situation, if one feels strongly about naming one’s business with profanity, they may have to defend that name. Knowing that upfront may be helpful.

POSTING PROFANITY

This is an area where the law gets really complicated because there are several laws at play. On the one hand there is free speech. However, on a platform that is owned by a company, not a government entity, the law applies a bit differently.

Here is how one scenario could play out. If a person posts profanity on a social media platform, that post may be deemed allowable. Depending on how much profanity and what the specific content is, on the other hand it may not be allowable. It depends on whether it is violating the terms and conditions set out by the social media platform. Now, if a person posts profanity and it is in regard to a work situation or union situation, that may be allowable regardless of the terms and conditions of the social media platform as there are certain rules and regulations that protect that type of speech and the ability of workers to voice a concern within the workplace.

In another situation, if someone posts speech that falls within those unprotected categories mentioned above, then the speech is not protected, and most likely it will violate the social media platform’s terms and conditions. Best practice would be to steer clear of that type of speech.

CONCLUSION

The First Amendment has a far-reaching effect on all of our lives, both personal and professional. It is often easy to oversimplify the issues surrounding the First Amendment. However, the First Amendment has a long history in our nation; it is not going anywhere. That being the case, it makes sense to gain a deeper understanding of how various forms of expression can impact one’s business.

DISCLAIMER: The materials available in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this website do not create an attorney-client relationship between Angie Avard Turner Law and the user or browser.

Angie Avard Turner

Angie Avard Turner is an attorney who exclusively represents clients in the gift industry including retailers, wholesalers, artists and bloggers. She is licensed to practice law in the state of Georgia, but she is able to handle copyright and trademark issues nationally. For more information regarding her practice, visit www.angieavardturnerlaw.com.




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