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Size of Trump’s hands at center of Supreme Court trademark case: ‘Trump Too Small’

The Supreme Court on Wednesday will hear arguments over whether the Patent and Trademark Office (PTO) violated the First Amendment when it refused the registration of a political slogan on T-shirts that criticizes former President Donald Trump without his consent.

At the heart of the case is the question of when First Amendment protections end and the right to privacy begins when a trademark contains criticism of a government official or public figure.

In 2017, Steve Elster, a politically active Democrat attorney in California, wanted to get the phrase “Trump Too Small” printed on T-shirts to sell. The phrase originated from an exchange on the 2016 debate stage between Trump and Sen. Marco Rubio, R-Fla. The Florida senator made a crude joke in reference to the size of the former president’s hands. 

But when Elster sought to trademark the slogan, he was denied by the PTO, and the Trademark and Trial Appeal Board upheld the decision, because the mark identified Trump without his consent. 

The decision was reversed by a federal circuit court, noting that Elster’s trademark goes to “the heart of the First Amendment,” and held that the government has no plausible “interest in restricting speech critical of government officials or public figures in the trademark context.”

Arguments are scheduled to begin at 10 a.m. on Wednesday.

Brianna Herlihy is a politics writer for Fox News Digital.

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