Can you trademark a joke about the former president’s dick? This critical constitutional question may soon be decided by the Supreme Court.
On Wednesday, the honorable justices of the highest court in the land will hear arguments in the case of Steve Elster, an attorney and activist, who attempted to trademark the phrase “Trump Too Small” in 2018 to sell t-shirts featuring the slogan and was denied by the U.S. Patent and Trademark Office.
The phrase is a reference to an infamous beef between former President Donald Trump, and Sen. Marco Rubio (R-Fla.) during the 2016 Republican primaries. “Have you seen his hands? And you know what they say about men with small hands,” Rubio joked during a campaign event.
The comment rubbed Trump the wrong way, and he responded during a Republican debate by assuring the nation that there was no problem in his pants. “Look at those hands. Are they small hands?” Trump said. “If they’re small, something else must be small. I guarantee you there’s no problem. I guarantee it.”
Elster’s design for a shirt referencing the spat featured the slogan “Trump Too Small” and a hand with fingers pinched as if they’re measuring something tiny, and on the back a list of the then president’s underwhelming proposal “package.” The U.S. Patent Office told Elster that he would need permission from Trump himself to trademark the slogan, a request the former president is not likely to grant.
Last year, the U.S. Court of Appeals for the Federal Circuit ruled in Elsther’s favor. The court determined that the Patent Office’s rejection of Elster’s trademark “unconstitutionally restricts free speech in violation of the First Amendment.” The court ruled that since Trump was a public figure and Esther’s shirt was a criticism of his politics (even if a bit crude) “the government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticism embodied in Elster’s mark.”
As noted by Politico, since Trump’s departure from office the court has repeatedly rejected the former president’s efforts to have it intervene in his favor — despite him having appointed three of the judges currently on the bench. The rejections include challenges to his 2020 election loss, his efforts to undermine Special Counsel Jack Smith’s investigation into his hoarding of classified documents, and his plea to prevent the Jan. 6 Committee from reviewing troves of material from his last days in office.
While Trump insists that he is not “too small,” he has far bigger concerns looming over him. The former president is facing a mountain of criminal and legal cases, several of which are expected to go to trial in the coming year. Trump is expected to file constitutional challenges in some of these cases, challenges that may make their way to the Supreme Court.
