But a unanimous panel of the U.S. Court of Appeals for the Federal Circuit said in 2022 that prohibition on violating a person’s privacy was outweighed by Elster’s First Amendment right to criticize public officials.
At oral argument in November in Vidal v. Elster, Chief Justice John G. Roberts Jr. suggested that ruling for Elster could make it more difficult for others to create their own takes about Trump, the presumptive Republican presidential nominee.
Elster came up with the idea for a “Trump Too Small” T-shirt after a memorable exchange of locker-room taunts in 2016 between Trump and Sen. Marco Rubio (R-Fla.), who at the time were rivals for the Republican presidential nomination. Tired of Trump’s dismissal of him as “Little Marco,” Rubio criticized the size of Trump’s hands during a campaign stop.
“You know what they say about men with small hands,” Rubio told a crowd in Salem, Va., pausing afterward to let the audience laugh. “You can’t trust ’em.”
Trump responded during a televised presidential debate days later with a remarkable claim about the size of his hands, and other extremities.
“Look at those hands, are they small hands?” Trump said, raising them for viewers to see. “And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”
Solicitor General Elizabeth B. Prelogar told the court that Elster is free to use the phrase “Trump Too Small” however he wants, but the government does not have to give him the protections that come with trademark registrations.
Living people have a valuable right to their own names, Prelogar wrote in advance of the oral argument. Elster’s “unquestioned First Amendment right to criticize the former President does not entitle him to enhanced mechanisms for enforcing property rights in another person’s name.”
