The Supreme Court will hear arguments Wednesday about whether a California man can trademark a phrase mocking Donald Trump as “too small.”
Labor lawyer Stephen Elster created a line of T-shirts that describe Trump as “too small” on a variety of social and political issues, with a healthy dose of innuendo thrown in. The slogan refers to an exchange during a 2016 presidential debate, when Marco Rubio accused Trump of having small hands. Trump, who is notoriously thin-skinned, has been unable to escape the barb since.
Elster tried to trademark the phrase “Trump too small” in 2018, but the Patent and Trademark Office denied his request. Wednesday’s lawsuit hinges on the question of whether a trademark can refer to a person. Federal law prohibits trademarks that refer to a person without that person’s consent. But last year, the U.S. Court of Appeals for the Federal Circuit ruled that that law was in violation of the First Amendment, because it limits “speech critical of government officials or public figures.”
The Supreme Court has previously avoided taking up cases related to Trump, denying his request to intervene when Congress sought his tax records or when he lost the 2020 election, among other instances. But clearly, the justices can’t ignore Trump much longer.
Trump isn’t even a party in the Elster case—it just includes his name. But Trump himself is facing down a barrage of legal issues that will likely reach the level of the nation’s highest court.
Trump’s legal team may appeal the gag order recently imposed by Judge Tanya Chutkan in his trial for trying to overturn the 2020 election. Trump has also repeatedly argued that he has presidential immunity from prosecution, and the Supreme Court may need to weigh in on that matter. Two lawsuits seek to bar Trump from the 2024 presidential ballot, and both are expected to reach the Supreme Court, as well.