In a ruling handed down this morning, the US Supreme Court unanimously sided with Asian American rock band “The Slants” against the U.S. Patent and Trademark Office. The Slants had sought to register their band’s name as a trademark, but was denied the mark under guidelines outlined in the 1946 Lanham Act, which prohibits the registration of any mark that might be deemed offensive or disparaging.
The Slants took issue with the US Patent and Trademark Office’s ruling, saying that their band name was not offensive, and was instead an effort to reclaim a racial or ethnic slur to empower the Asian American community.
However, The Slants’ legal battle to challenge the Lanham Act’s disparagement clause is of particular political relevance, as the clause also represents a significant legal basis for the Native American community’s protest of the “Washington Redskins”‘ name and trademark.
I have written in the past about The Slants’ argument against the Lanham Act’s disparagement clause, which led to the US Patent and Trademark Office denying them their mark’s registration. Specifically, I agreed with the Lanham Act’s overall strictures against disparaging marks, but I raised a procedural issue: What is the process, I wondered, by which the U.S. Patent and Trademark Office rules that a mark is potentially disparaging or offensive?
Descriptions of this process in the lawsuit filed by The Slants notes that the decision is typically arbitrary and inconsistent, and it typically fails to solicit the opinions of affected communities. I believed — in 2015 and now — that this process needs total reform to empower the communities who might be most impacted by the registration of a potentially offensive mark, and to give them a venue through which they might speak for (or against) a particular mark before it is registered. In other words, I believed that offensive and disparaging marks should be prohibited, but that a different process should be implemented that would allow for impacted communities (and not a panel of lawyers) to help decide what is — and what isn’t — offensive.
In their lawsuit, however, The Slants adopted a broader First Amendment argument, arguing that the Lanham Act’s disparagement clause itself violated free speech laws. In effect, they argued that the US Patent and Trademark Office had no business discerning whether or not a mark is offensive, as this would impinge upon The Slants’ right to reclaim a racial slur. Instead, The Slants’ founder Simon Tam has argued that potentially offensive marks (such as the “Redskins”) should be punished in the free market, not at the level of trademark registration. Said Tam to The Washingtonian in 2016:
If there’s genuine concern about the government supporting or protecting offensive content, then why is the moral line in the sand drawn at trademark registrations? Will these groups want copyright protection stripped from songs that contain potentially offensive content? Do they support the removal of books from public libraries? These institutions all bear the federal stamp of approval. Plus, unlike trademark registrations, those are actually funded by tax dollars.
I don’t think we should discourage people from using wit or irony or reappropriation just so we can also disarm malicious people. There should be a more culturally competent approach that doesn’t undermine the work of activists and artists who use reappropriation to encourage and educate people. But the debate on free speech has almost always focused on those who abuse it.
This morning, the Supreme Court unanimously sided with this free speech reasoning. Writing for the Court, Justice Samuel Alito said in the decision:
The disparagement clause violates the First Amendment’s Free Speech Clause. Contrary to the Government’ s contention, trademarks are private, not government speech… This Court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.
The larger impact of this ruling is that the Supreme Court establishes that the federal government does not implicitly condone private speech by granting it federal registration. Instead, the government is absolved of the contents of speech even while granting government sanction of it. The impact of this ruling to not only the “Redskins” debate but also to other instances of public hatespeech remain unclear at this time.
What is certain, however, is that The Slants have won their case, and with this ruling comes a major legal precedent that many free speech advocates are already celebrating.
Read the full U.S. Supreme Court ruling via NPR here.