No Joke: Supreme Court Case Could Take a Big Bite Out of the First Amendment

Below is my column in The Hill on what is shaping up to be a major Supreme Court term on the issues of parody and satire under the First Amendment. The Court could reframe the constitutional limits for criminal and civil liability in two cases currently on the docket, including one recently granted review.

Here is the column:

The court system often is where humor goes to die. For those seeking to use satire or parody of corporations, jokes often run into trademark or other lawsuits and result in a little more than “ha, ha, thump.”

The same bad audience could await the defendant in Jack Daniel’s Properties Inc. v. VIP Products LLC. The Supreme Court just accepted a case involving a tongue-in-cheek dog chew toy made to resemble a Jack Daniel’s whiskey bottle. VIP prevailed in defending the toy as protected speech, but the distiller wants the Supreme Court to declare such parodies to be trademark violations.

The docket this term is actually a hoot of parody cases.

Another pending case is Novak v. City of Parma, in which Anthony Novak was prosecuted for posting a parody of the website of his local police department. He was charged with (and later acquitted of) a felony under an Ohio law prohibiting the use of a computer to “disrupt” or “interrupt” police functions.

The satirical site, The Onion, has filed a brilliant parody brief to support the right to parody. The Onion regularly publishes funny fake news stories and, true to form, filed a brief as the self-described “world’s leading news publication” offering “universally revered coverage,” and noting it is the “single most powerful and influential organization in human history.” It told the court that its “more than 350,000 full- and part-time” staff members are renowned for “maintaining a towering standard of excellence” in journalism. (It added that it “owns and operates the majority of the world’s transoceanic shipping lanes, stands on the nation’s leading edge on matters of deforestation and strip mining, and proudly conducts tests on millions of animals daily.”) It was a tour-de-force on the value of satire to make profound legal and political points.

Image from Supreme Court Petition

The court has yet to decide whether to take the Novak case, but it has accepted the Jack Daniel’s case. The distiller sued VIP over its introduction of the Silly Squeakers “Bad Spaniels” rubber squeaky toy. The toy is shaped like a whiskey bottle with a cartoon spaniel on the front and the caption: “Bad Spaniels, the Old No. 2, on your Tennessee Carpet.” On the back is a small disclaimer reading: “This product is not affiliated with Jack Daniel’s Distillery.”

That clearly was not enough for the distillery, which argued that people would be confused by the parody. While the district court originally ruled with Jack Daniel’s, it was reversed by the U.S. Court of Appeals for the Ninth Circuit. The chew toy was ruled (correctly, in my mind) to involve “new expressive content” and to be protected under the First Amendment.

The Supreme Court has recognized that satire and parody have long played a key role in political discourse stretching back to ancient Greece. In 1988, the court handed down the important free-speech decision in Hustler Magazine v. Falwell, holding that an offensive cartoon of Rev. Jerry Falwell was protected under the First Amendment from civil liability.

A chew toy is obviously not the type of “slashing and one-sided” political commentary which the court found in the Hustler case. However, the distiller is advancing a claim that would chill the use of any common image in a parody or satire, even though no reasonable person would confuse the products.

At issue is the Ninth Circuit’s highly protective free-speech test for trademark claims where a company argues that a product “tarnishes” its image. The Ninth Circuit has held that the “referential and cultural icon requirements” just have to be “above zero” to be protected under the First Amendment.

The district court originally objected that, once a court finds that a parody is protected speech, companies have little ability to overcome free-speech objections. It found that the Bad Spaniels toy was not an artistic or expressive work and was not entitled to protection under the First Amendment. But the Ninth Circuit reversed and remanded, finding it to be expressive speech protected by the First Amendment.

On remand, the district court found that standard was made because, as it said, “A parody functions just like a mash-up. It modifies and plays with the elements of an original work to express something new and different.” Three other circuits have rejected this approach. Yet, in the absence of congressional action (which is unlikely, given the power of corporate lobbies), the Ninth Circuit offers greater clarity and space for free expression.

Parody and satire also face threats from other legal actions, particularly tort actions over the appropriation of names or likenesses (called the right to publicity). The courts, including the Ninth Circuit, have made a distinctly unfunny mess of such cases. Past tort cases generally have favored celebrities and resulted in rulings like White v. Samsung, a perfectly ludicrous ruling in which Vanna White successfully sued over the use of a robot with a blonde wig turning cards as the appropriation of her name or likeness. It appears no blonde being — robotic or human — may turn cards on a fake game show.

The court’s term could prove to be the most important docket on parody and satire in decades. It may prove less protective on trademark actions (like Jack Daniel’s) than criminal matters (like Novak). However, this involves more than a canine chew toy — it will impact a wide range of creative expression using common cultural images or references.

This dog toy was an obvious parody and expressly included a disclaimer of any connection to the distillery; it neither confuses consumers nor tarnishes the Jack Daniel’s trademark.

A lack of sense of humor, not a lack of sufficient clarity, drove this litigation — but make no mistake: If this little chew toy is found to be a trademark violation, the court may take a big bite out of the First Amendment.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

44 thoughts on “No Joke: Supreme Court Case Could Take a Big Bite Out of the First Amendment”

  1. The bottom line is that JD should have a case if and only if someone, somewhere, is likely to buy this chew toy instead of a JD product. Since nobody is likely ever to do that, the case should have been dismissed.

  2. Anyone who would confuse a dog’s chew toy with a bottle of whiskey deserves neither a dog nor a bottle of whiskey. Anyone who would waste the court’s time on a farcical case like this provides an excellent example of problems endured by first world elites.

  3. I can see it now….can’t do a fauci bobble head…..on a flip flop. Can’t do an anti hhs vaccine spoof. Because why? A trade mark? So Merck at al….Will use this to totally squelch free speech. If the Supremes up hold it. Big if. In fact the bottle only has so many possibilities….and the trademark has expired….so its really in general “wares…. Like like embellishing the star spangled banner. So basically jack relies on a patent of his bbottle….long expired….and easily reproducible… he owns that simple ceramic art? Of only so many combinations to pour right? I’m sorry, Jack Daniels doesn’t own physics. Nor free speech! He’ll have to prove some sort of intent….and then that’s an interference with contracts case not a free speech case….unless we’re facists.

  4. I’m not sure why Jack Daniels is pursuing the case so far. The only negative I see so far for the company is people being turned off by Jack’s obvious lack of any sense of humor. If I thought my dog would play with it, I’d get one of the toys for her. Personally, I thought the toy would be good advertising for the brand.

    1. Eminently reasonable. .. the dogs don’t care if it resembles a bottle of Jack Daniels.

      *if that means anything.

    2. Part of the things about being an adult, or having a trademark or copyright, is that YOU are the one who gets to decide, not someone else deciding “for” you “in your best interest”.

      So the fact that you think JD should decide differently really is, and should be, irrelevant.

    3. Your on the right track…Jack should think who his consumers are…..because we can change in a heart beat to other alcohol!!!. If he’s going to become the symbol of anti free speech…his competitors may make him the mockery. His consumers Shun it. Obe level. Anti free speech. Like Facebook to snap chat level shun…but Jack doesn’t have a snap chat. He bought. ust seeing and calling it…..he has know idea his clientele…..well stop drinking it if heaven to free speech…the point of drinking in the first instance.

  5. Is it ironic the 9th, a parody of common sense thinking itself by being the most overturned court by the Supremes, is upholding rights for a squeaky toy manufacturer while other courts say ‘this is serious legal business, folks’?

  6. Either property damage or bodily injury are manifest or they are not.

    Is it not irrelevant juridical obsession to argue infinitesimal aspects and facets of hypothetical “facts” in search of damages and injuries that simply do not exist at any significant or even perceptible level?

    May one sue for an “annihilating” facial expression or “totally destructive,” nay, “terminal” digital presentation?

    There’s way too much “adjudicatin'” goin’ on around heah!

    The terms frivolous and dismissal with extreme prejudice come to mind.

  7. Larry Flynt won his case on parody when Falwell sued, but thats when the SCOTUS had legitimacy. This court has no legitimacy, and is ran by political operatives that has shown all cases settled, can be overturned.

    1. Fish Wings: you took the words right out of my mouth! The Dobbs 4 all lied to get onto the SCOTUS so they could actually thwart the will of the majority of the American people, which makes it all the worse. There is no longer any such thing as stare decisis. And 3 of them were appointed by someone who cheated to get into office, their nominations allowed by a Republican who blocked a legitimately-elected Democrat President’s choice of nominee. Plus there’s the fact that Republicans gerrymandered to get so many of them in Congress. Republican Senators represent a distinct minority of the American populace. It’s outrageous!

      1. NUTCHACHACHA, You’re great!

        May we please get rid of affirmative action and all the fixin’s now, or do ya’all still need them due to your incompetence and complete dearth of gumption and acumen?

      2. But Obama’s SCOTUS appointments were made by a president who was illegitimate by reason of his dual Indonesian/British citizenships.


          Barack Obama will NEVER be eligible to be U.S. president.

          Barack Obama’s father was a foreign citizen at the time of his birth.

          – A mere “citizen” could only have been President at the time of the adoption of the Constitution – not after.

          – The U.S. Constitution, Article 2, Section 1, Clause 5, requires the President to be a “natural born citizen,” which, by definition in the Law of Nations, requires “parents who are citizens” at the time of birth of the candidate and that he be “…born of a father who is a citizen;…”

          – Ben Franklin thanked Charles Dumas for copies of the Law of Nations which “…has been continually in the hands of the members of our Congress, now sitting,…”

          – “The importance of The Law of Nations, therefore, resides both in its systematic derivation of international law from natural law and in its compelling synthesis of the modern discourse of natural jurisprudence with the even newer language of political economy. The features help to explain the continuing appeal of this text well into the nineteenth century among politicians, international lawyers and political theorists of every complexion.”

          – Law of Nations Editors Bela Kapossy and Richard Whatmore. 

          – The Jay/Washington letter of July, 1787, raised the presidential requirement from citizen to “natural born citizen” to place a “strong check” against foreign allegiances by the commander-in-chief.

          – Every American President before Obama had two parents who were American citizens.

          – The Constitution is not a dictionary and does not define esoteric words or phrases, while the Law of Nations, 1758, does.

          – The Law of Nations is referenced in Article 1, Section 8, Clause 10, of the U.S. Constitution: “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;…” 


          Law of Nations, Vattel, 1758

          Book 1, Ch. 19

          § 212. Citizens and natives.

          “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”


          Ben Franklin letter December 9, 1775, thanking Charles Dumas for 3 copies of the Law of Nations:

          “…I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author…”


          To George Washington from John Jay, 25 July 1787

          From John Jay

          New York 25 July 1787

          Dear Sir

          I was this morning honored with your Excellency’s Favor of the 22d

          Inst: & immediately delivered the Letter it enclosed to Commodore

          Jones, who being detained by Business, did not go in the french Packet,

          which sailed Yesterday.

          Permit me to hint, whether it would not be wise & seasonable to

          provide a strong check to the admission of Foreigners into the

          administration of our national Government, and to declare expressly that the Command in chief

          of the american army shall not be given to, nor devolved on, any but a natural born Citizen.

          Mrs Jay is obliged by your attention, and assures You of her perfect

          Esteem & Regard—with similar Sentiments the most cordial and sincere

           I remain Dear Sir Your faithful Friend & Servt

          John Jay

    2. Larry Flynt won his case on parody when Falwell sued,

      Because Flynt’s stock in trade was parody. VIP has never used parody, plus the fact there in no parody. you’re comparing apples to fire hydrants

  8. I’m sorry, but you’re wrong

    The Supreme Court just accepted a case involving a tongue-in-cheek dog chew toy made to resemble a Jack Daniel’s whiskey bottle. VIP prevailed in defending the toy as protected speech

    But it isn’t. It’s someone trying to leverage someone else’s Trademark into profit for them

    And IIUC the whole purpose of Trademark is to block that.

    It’s not “protected speech”, it’s not a “joke”, it’s VIP trying to make money off of JD’s Trademarks

    The Novak case might be a legitimate parody (claiming to be the actual X website when you’re not IMO is questionable, at best). This is not

    1. No reasonable person would connect a dog chew toy with whiskey or a whiskey bottle. No reasonable dog owner would purchase a dog toy BECAUSE it was shaped like a whiskey bottle, either. Dog chew toys do not compete in the same market with manufacturers and sellers of distilled spirits–so no one’s stealing Jack Daniels’ trademark in order to unfairly compete and sell whiskey or distilled spirits.

      1. ” No reasonable dog owner would purchase a dog toy BECAUSE it was shaped like a whiskey bottle, either”


        The WHOLE POINT to using that shape is to get people to buy it because it looks like a JD Whiskey bottle

        Otherwise they never woudl have chosen that shape, and paid for this long legal battle, in the first place

        They did not make the perfect dog chew toy, and discover that it just happened to look like a JD bottle

        They chose to make a dog crew toy that looked like a JD bottle, because they thought it would get them more sales

        I see NO reasonable argument that doing so is not in fact a violation of the JD Trademark

        Certainly no one here has even tried to make such an argument

        1. “I see NO reasonable argument that doing so is not in fact a violation of the JD Trademark. Certainly no one here has even tried to make such an argument” Defense isn’t required to argue in court they’re not violating JD’s trademark, or any other, law. Jack Daniels, as the plaintiff, is required to prove they are and has suffered damages as a result.

          1. You’re not VIP’s defense attorney, and you’re not in court

            You’re a citizen here in public, trying to argue that “it’s just a parody” is supposed to let people advance their business using someone else’s trademark

            At which you’re failing, utterly

            None of us get a vote on SCOTUS. What we do get to do is decide whether JD or VIP deserves to win.

            Right now, it looks to me like JD deserves to win, because what VIP is doing is not worthy of defense

            1. I never said I wasn’t an attorney or otherwise don’t know what’s going on in this case. The point is that neither you nor ‘Jack’ have explained how Jack Daniels has been, and continues to be, ‘damaged’ by a party that sells squeaky toys. Are you and ‘Jack’ attempting to claim that if not for the squeaky toy, Jack Daniels would be selling even more whisky? How? Please be specific.

              As I said, bring the toy to court and PROVE your case. If YOU or anyone other consumer can’t tell the difference between the two products being discussed, then you MIGHT have a legal case but either way, it’s never up to the defense to argue, let alone prove, its innocence. Not to you, not to the court, not to anyone else. Plaintiff is ALWAYS the party that must PROVE their case, PROVE defendant’s malice, AND PROVE damages are/were caused by the defendant’s actions. That you can’t or are unwilling to follow that reasoning is not the fault of anyone here but an utter failure on your part.

        2. I’ve seen dog chew toys in various shapes, sizes and made of various materials. Everyone knows that all pet products are marketed to get humans to buy them, not necessarily because a dog or cat finds them amusing. Does anyone believe that a natural diet for dogs includes pumpkins, blueberries, peas, carrots or other vegetables that some premium dog food brands put in dry dog food? Those things are there because they are nutritious for humans. I have a George W. Bush dog chew toy–do you thnk my dog cares about politics? That said, a dog chew toy, instead of infringing on Jack Daniels might actually make it more popular, but I don’t think any resemblance to a Jack Daniels whiskey bottle would drive sales or in any way interfere with Jack Daniels sales, either. The products simply do not compete for the same market. You really lose credibility when you claim to know what other people are thinking.

          1. You really lose credibility when you claim that it’s impossible to use reason to understand why people are doing things

    2. “It’s someone trying to leverage someone else’s Trademark into profit for them”

      Spot on! And that is what makes it IP theft.

      Some are wrongly focusing on the product (a dog toy). But that is irrelevant. What is relevant are the remarkable similarities in the bottling, labeling, name, slogans. All of those speak of: “Hey, let’s hijack JD’s IP to promote our product.”

      1. No, that does not make it IP theft, because trademark infringement is not theft, it is a kind of consumer fraud. The purpose of trademark law is not to protect the owner but to protect the consumer. So long as the consumer is not being swindled into buying an inferior product that he would not have bought had he not been under the impression it was made by the trademark owner, there is (or should be) no infringement.

        1. “[T]rademark infringement is not theft, it is a kind of consumer fraud . . .”

          Fraud is a form of theft. See Madoff.
          “The purpose of trademark law is not to protect the owner . . .”

          So the purpose of a law that protects the owner of a trademark against infringement is *not* to protect the owner?!

          That’s bizarre.

    3. No, that is NOT the purpose of trademark law. The entire purpose of trademark law is to PROTECT THE CONSUMER. So long as the consumer is not led to buy the toy under the mistaken impression that it is made by the whisky company, there is (or should be) no trademark violation.

      (Yes, I’m aware of “trademark dilution”. I refuse to consider it a legitimate concept. Congress had no business legislating it, and the courts ought to have struck it down as exceeding Congress’s powers under the trademark clause.)

      1. “The entire purpose of trademark law is to PROTECT THE CONSUMER.”

        Actually, it’s purpose is to proect both — primarily the creator/owner; secondarily the consumer. Without the former, there is no latter.

        (All caps does not streghten your argument. It just make you sound shrill.)

  9. Jack Daniel’s copyright Logos & Name are used on a variety of products,
    Such as:

    Jack Daniel’s – BBQ Sauce
    Jack Daniel’s – Meats
    Jack Daniel’s Pulled Chicken
    Jack Daniel’s Pulled Beef
    Jack Daniel’s Pulled Pork
    Jack Daniel’s Tennessee Bitters
    Jack Daniel’s Tennessee Pecans
    Jack Daniel’s Whiskey Praline Pecans
    Jack Daniel’s Chocolate Bar
    Jack Daniels Smoking Pellets
    Jack Daniel’s Chicken Rub

    Jack Daniel Distillery has introduced Jack Daniel’s Canned Cocktails,
    made with Jack Daniel’s Tennessee Whiskey.

    The beverages come in three varieties:
    Jack & Seltzer
    Jack & Cola
    Jack Honey & Lemonade
    Jack Daniel’s & Coca-Cola In a Can

    etcetera, etcetera … [Just Google-Images: jack daniel’s foods]

    So I assume that the Folks at Jack Daniel’s will soon make Jack Daniel’s flavored Dog Kibbles much to Luna’s delight,
    whereas this Chew-Toy may run into an infringement. The Appeals Court held whiskey bottle shaped dog toy does not infringe Jack Daniel’s trademark for trade dress in whiskey bottle.

    IMHO, There is merit in the Design-Patent aspect as to the Shape of the Toy,
    Jack Daniel’s Bottle has a very unique bottle design shape, as such, much like the Coke-Cola bottle shape.
    Jack Daniel’s Patent: USD698256S1 | Coke-Cola’s

    Myself, I’m a Very Old Barton and Buffalo Trace fan.
    The only true Bourbon is a Kentucky Bourbon made with Limestone Waters.
    Walked away from Ole Rock Gut Daniel’s decades ago.

    1. Some people, and I’m not saying who, just can’t take a joke.

      *I hear the Bourbon and branch water in Bourbon County Kentucky is the old No. #1

  10. JD is offended and lacks a sense of humor. It is a sad example of the rampant cottage “I’m offended” industry. Get over it, JD go make your excellent product (not a paid endorsement). No one is going to compare your product to a dog toy.

  11. Dear Prof Turley,

    Parody, once again, is getting a bad rap here imo. I fail to understand how Chewy dogs No. 2 impinges upon the sale, worth or value of any fine Tennessee sipping whisky? Jack Daniels would be wise to let sleeping dogs lie.

    It’s like suing Trump for selling MAGA hats.

    ‘Humour’, as the bloody Brits pronounce it, is my Dept. Should the SCOTUS accept this cockeyed case, you can expect my typical blow-by-blow analysis .. . as it were:

    1. They are attempting to make money of off JD’s Trademark, yes?

      Which is to say, that are attempting to use JD’s distinctive design to pull in customers.

      The purpose of Trademark is to keep other people from using your Trademark to make them money, yes?

      Since that’s what’s happening here, JD should win

      1. >”They are attempting to make money off of JD’s Trademark, yes?”

        No, not necessarily.

        Not sure I would agree with Prof Turley that VIP’s No. 2 dog ‘chew toy resembles a bottle of Jack Daniels.’ Judge for yourself:

        Clearly, it’s not a blatant JD ‘knock-off’ made in China. See disclaimer. At most, VIP dog chew No. 2 may, or may not, be a parody of a Jack Daniels Trademark. A whimsical expression of sober disdain, perhaps, of the Jack Daniels Trademark itself.

        As you can see, there are many dog chews out there, on all sorts of subjects, both public and private.

        *The important thing is the dogs will be o.k.

        1. 1: Thank you for the link, and the images
          2: “Bad Spaniels” rhymes with “Jack Damiels”
          3: “The Old No 2” “Old No 7 => Evocative look
          4: “Tennessee Carpet” “Tennessee Whiskey” => Are they only selling it in Tennessee? No?

          Those all immediately grabbed my eye, as did the bottle shape.

          IMO: You do not have a moral right to make money off of someone else’s IP, and you should not have a legal and / or First Amendment right to do so

          I hope VIP loses

      2. The purpose of Trademark is to keep other people from using your Trademark to make them money, yes?

        No, that is not the purpose of trademarks. The only legitimate purpose of trademarks is to keep other people from STEALING YOUR CUSTOMERS. The defendants in this case are not doing that.

        1. No. Its not customers. Its reputation. Harley Davidson is a brand, It sells a lot of things that aren’t a motorcycle. LOTS of people are loyal to a brand. So if you are selling a dog toy. A dog lover would see a brand they like and by the dog toy, even if they don’t have a dog. But JD did not loose a customer, because JD does not sell any dog toys.

  12. More infantilization of the American mind. Why does J.D. feel they trump Americans freedom to get a chuckle over a dog toy?
    It is not like they are selling a barbecue shaped like a Tesla.

    1. “Why does J.D. feel they trump Americans freedom to get a chuckle over a dog toy?”

      The J.D. Legal Department hasn’t had much to do lately so they needed to justify their big salaries. The CEO failed to recognize the stupidity of this move. Win or lose in the SCOTUS, they will pay for that mistake.

  13. I think Jack Daniel’s Properties has missed the fact that the chew toy is also a kind of free advertising for their product. Perhaps edgy owners of edgy dogs will now choose to imbibe Jim Beam instead. I also wonder if Wacky Packages filed a brief.

    1. As the owner and creator of a viable, trademarked logo, I agree with you in that in most instances, parody of my logo would only serve to spread its identifibility farther – free advertising, so to speak. But, if some similar manufacturer were to use my identical logo to sell their product, I would need take them to court. One instance is free speech, the other is theft of my business value.

      1. Identical logo on similar products that would easily fool the average brain-dead American consumer into buying the ‘other’ product, yes. JD might have a point of they already make, or have trademarked, a bottle of whisky that squeaks when squeezed. If so, bring one to court for comparison to the dog toy. Then see how many in media covering the hearings can’t tell the difference.

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