Federal Circuit Gutless

While some may think that it is a display of restraint and respect for the rule of law for a federal appellate court to honor a precedent that it then proceeds to explain is a clearly unconstitutional application of the First Amendment as the law of the First Amendment has developed since then, I personally, am inclined to think that deliberating following what is now a clearly unconstitutional precedent, and forcing the party losing on appeal to seek review en banc or from the United States Supreme Court, is merely gutless.

In this case, it involves the Federal Circuit's decision to affirm the Patent and Trademark Office's right to deny registration of a trademark because it is disparaging, supported by a 1981 precedent called In re McGinley that is clearly bad law today as the author of the Court's unanimous opinion explains in a separate opinion on the subject.

Presumably, the party losing the appeal will now take it to the next level, but there is no guaranty that the en banc Court of Appeals for the Federal Circuit, or the U.S. Supreme Court will take up the issue, or that the party winning the appeal (the United States Government) will not concede the case on its individual facts in order to keep an unconstitutional law in force.

Also, for that matter, why in the world is the Justice Department in a Democratic Presidential administration fighting this case, rather than conceding it and refusing to defend what is now a clearly unconstitutional law?

We don't have to make the business of vindicating federal constitutional rights harder than it needs to be, particularly in such a straightforward case.