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Welcome to advisory opinions. Don't touch your iPhone. I know this is not Sarah. This is special guest David French guest hosting for Sarah with

the special guest. I don't know how we're going to say it. But anyway, I'm David French joined by David Lat. You've got the David's today while Sarah is on vacation.

And we have a really great podcast lineup for you today. All issues that are really interesting and which I can't say was true for the last podcast where I spent way too long David talking about post trial motions.

Not our most exciting moment, but when I was kind of strangely interested in because of my own practice. But we're going to be talking about the nation's first religious charter school. How does that work?

We're going to be talking about the text history and tradition test involving the second amendment and some new cases, including a district court talking about a ruling on an assault weapons ban.

We're going to talk about the richest partners in the United States of America. But first David, let's start with a little bit of a scotus grant here on a first amendment issue that is interesting.

Not our shattering, but interesting. So first welcome David. Thanks for coming back to advisory opinions. And second, fill us in on the new scotus grant.

It's always a pleasure to be here. Thanks so much David for having me. I feel a little guilty here cheating on Sarah, who is my usual partner here, but I'm always delighted to be here.

Monday, the Supreme Court granted one new case. It is the case of Vidal V. Elster, Vidal being Kathy Vidal, who's the head of the US patent and trademark office.

Elster is actually an attorney, but in this case, he is a would be T-shirt hawker. He wants to sell T-shirts with the slogan on them, Trump to small, referring of course to that infamous moment number of years ago when Trump at one of the presidential debates.

Got into that jousting with Marco Rubio about his Trump having small hands. And Elster, I think, wants to argue that Trump's policies make all of us smaller, make our nation smaller. And so he wants to hawk these T-shirts.

But there is a provision of the trademark law that allows that requires the refusal of registering a trademark when the mark references a person without their permission essentially to kind of sum it up.

And there is however a first amendment issue because here, Elster wants to make an argument against a public official, a former public official, a public figure, Donald Trump.

And so the question that the court's going to tackle or that is teed up is whether the refusal to register this trademark under the relevant provision, 15 USC, 1052C violates the free speech clause of the first amendment.

When the mark contains criticism of a government official or public figure.

Interesting case. And it's always the these little first amendment trademark type cases always end up with some pretty,

pretty speech.

We had a previous case dealing with a trademark regarding an Asian band that listeners might recall contained the name contained a racial slur.

And one of the issues was, well, was that going to be something that could be protected or not protected? Here we have a crude joke because I think people might remember the issue wasn't just whether Trump's hands were small.

So that was one of the moments of 2016 that foreshadowed everything that was to follow.

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