Yesterday, the Supreme Court heard oral argument in a case involving the crossroads between trademark law and the government’s ability or lack thereof to regulate so-called “offensive speech,” and based at least on the reports regarding the arguments it appears that the Federal Government had a rough day in Court:
WASHINGTON — The Supreme Court on Wednesday appeared deeply skeptical about the constitutionality of a federal law that denies protection to disparaging trademarks. Almost every member of the court indicated that the law was hard to reconcile with the First Amendment.
The court’s decision in the case, concerning an Asian-American dance-rock band called the Slants, will probably also effectively resolve a separate one in favor of the Washington Redskins football team.
The law denies federal trademark protection to messages that may disparage people, living or dead, along with “institutions, beliefs or national symbols.”
Malcolm L. Stewart, a deputy solicitor general, said the trademark law does not bar any speech, as the Slants remain free to continue to use their name. The law “places a reasonable limit on access to a government program rather than a restriction on speech,” he said, and so “does not violate the First Amendment.”
But Justice Elena Kagan said that even government programs may not discriminate based on speakers’ viewpoints.
“The point is that I can say good things about something, but I can’t say bad things about something,” she said of the law. “And I would have thought that that was a fairly classic case of viewpoint discrimination.” Viewpoint discrimination by the government, the Supreme Court has said, is presumptively unconstitutional.
Justice Anthony M. Kennedy said the law interfered with free expression.
“We have a culture in which we have T-shirts and logos and rock bands and so forth that are expressing a point of view,” he said. “They are using the market to express views.”
Justice Kennedy has an expansive conception of First Amendment rights, and his support for the band’s position was expected. More surprising were statements from Justice Stephen G. Breyer, who is often prepared to balance other interests against First Amendment values.
“What purpose or objective of trademark protection does this particular disparagement provision help along or further?” Justice Breyer asked Mr. Stewart.
Trademarks, Mr. Stewart said, are meant to identify a product’s source. Mixing in a message can be distracting, he said, and the government is entitled to limit those distractions.
That answer did not satisfy Justice Breyer. Distracting trademarks are commonplace, he said, while the law only addressed disparaging ones. “And what business does Congress have picking out this one, but letting all the other distractions exist?” Justice Breyer asked.
In addition to the question of viewpoint discrimination, Justice Ruth Bader Ginsburg said, “there’s also a large concern with vagueness here.”
She said the government had applied the law inconsistently when confronted by ethnic slurs, noting that it had both registered and rejected trademarks for the term “Heeb.” (She could have said the same thing about “Dago,” “Injun” and “Squaw.”)
Mr. Stewart said the government “receives 300,000 trademark applications every year, so it’s not surprising that there is some potential inconsistency.”
Mr. Stewart spent only a little time on what may have been his strongest argument, one drawing on the Supreme Court’s 2015 decision in Walker v. Sons of Confederate Veterans, which ruled that Texas could refuse to allow specialty license plates bearing the Confederate battle flag because the plates were the government’s speech and were thus immune from attacks on First Amendment grounds.
Mr. Stewart did say that the government should not be forced to publish a registry of trademarks including “vilest racial epithets” or “insulting caricatures of venerated religious figures.”
Justice Ginsburg noted that the Slants say they do not intend to disparage anyone. The band says it sought to adopt and reform a disparaging term about Asians, much as some gay people have embraced the term “queer.”
“Does it not count at all that everyone knows that the Slants is using this term not at all to disparage, but simply to describe?” she asked. “It takes the sting out of the word.”
Mr. Stewart said the band’s intentions were not the end of the matter. In denying its trademark application, Mr. Stewart said, a government lawyer had found “a lot of evidence in the form of internet commentary” that many Asian-Americans found the band’s name offensive, notwithstanding the band’s intent.
John C. Connell, a lawyer for Simon Tam, the Slants’s founder and leader, said the band could have trademarked the term “Proud Asians.”
Justice Kennedy quickly pressed him on the limits of his argument, asking whether a non-Asian band intending to mock Asians could trademark “the Slants.”
Mr. Connell said yes.
“The First Amendment protects absolutely outrageous speech insofar as trademarks are concerned,” Justice Kennedy said, restating the lawyer’s point.
“That is correct,” Mr. Connell said.
Justice Kennedy responded: “I think you have to take that position.”
As I’ve said before, one should always be careful about drawing conclusions from what occurs at oral argument in the Supreme Court, or any other Court. Quite often, Judges and Justices ask questions in a way that doesn’t necessarily equate with where they will ultimately end up in a particular case. Notwithstanding that caveat, though, oral argument has generally been a good guide about where a majority of the Court may be headed in a particular case and, based on this analysis from The New York Times as well as similar summaries from The Washington Post and SCOTUSBlog’s Amy Howe, it does appear as though the Justices are highly skeptical of the Federal Government’s position that the law barring trademark protection to allegedly “offensive” trademarks can be reconciled with existing First Amendment case law. In the recent past, for example, the Court has ruled that protests at a funeral by the Westboro Baptist Church, so-called animal ‘crush’ videos, and false claims about military honors that may be offensive to those who have served in uniform are all protected speech under the First Amendment. Given those and other holdings, it’s hard to see how a law such as the one at issue in this case could withstand scrutiny. Additionally, as at least one Justice made clear during the course of yesterday’s hearing, the law itself is vague in that it does not define with any degree of clarity exactly what is considered “offensive” or what standard is supposed to be applied in making that determination. Instead, the decision is essentially left to the potentially arbitrary opinion of whichever employee
As I’ve noted in this case, the outcome in this case could have implications far beyond the fate of the trademark request of one musical group. The most well-known case it would impact, of course, would be the one involving the Washington Redskins, who had their own fifty-year-old trademarks revoked by a Patent Office hearing panel based on the same statute under which The Slants were denied trademark protection. Even if the Justices don’t entirely adopt the argument made by The Slants in this case, it’s hard to see how a victory on their part would not enure to the team’s benefit in their own case appealing the decision of the Patent And Trademark Office. This, of course, is why the team filed an amicus brief supporting The Slants in the Supreme Court and are no doubt paying close attention to the case and its outcome given the fact that millions of dollars of merchandise sales could be at issue. As with any case before the Court, of course, we won’t know what the decision is for several months at least and possibly not until sometime close to the end of the Court’s current term in June. Until then, predicting the outcome is really rather pointless.
Here’s the transcript from yesterday’s argument:
Lee v. Tam Argument Transcript by Doug Mataconis on Scribd
