Supreme Court seems set to rule against t-shirt maker who mocked Trump

 November 3, 2023

NPR reported this week that it appears the Supreme Court will rule against a t-shirt maker who mocked former President Donald Trump. 

Part-time Democratic activist Steve Elster sought to trademark the phrase "too small" for use on t-shirts and other apparel items.

Justices sound skeptical about plaintiff's First Amendment arguments

Elster's application was turned down by the Patent and Trademark Office on the grounds that federal law prohibits using a living person's name in a trademark without that person's consent.

The U.S. Court of Appeals for the Federal Circuit found in favor of Elster, maintaining that the decision infringed on his First Amendment rights.

However, NPR noted that Justices Clarence Thomas and Sonia Sotomayor both expressed skepticism over the plaintiff's arguments.

"The question is, is this an infringement on speech? And the answer is no," Justice Sotomayor was quoted as stating on Wednesday.

"He can sell as many shirts with this ["Trump Too Small"] saying as he wants," she continued. Thomas sounded a similar note, asking, "What speech is precisely being burdened?"

Phrase came from a fight between Trump and Marco Rubio

The phrase "Trump too small" is a reference to a feud that played out seven years ago between Trump and Florida Republican Sen. Marco Rubio during the 2016 Republican primary race.

According to Time magazine, the spat began when Rubio told attendees at a rally in Virginia that Trump has "small hands."

"And you know what they say about guys with small hands," the senator said with a pause before adding, "You can’t trust them."

Trump didn't take the accusation lying down and made a point of shooting back during a debate moderated by Fox News host Chris Wallace.

"I guarantee you there’s no problem"

"He hit my hands. Nobody has ever hit my hands, I've never heard of this. But look at those hands," Trump demanded as he held his hands up in front of the audience.

"Are they small hands?" the future president asked. "And, he referred to my hands — 'if they’re small, something else must be small.' I guarantee you there’s no problem. I guarantee it."

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