On Wednesday morning the Supreme Court will hear oral argument in a case that could have significant implications on the government’s ability to bar “offensive” speech even when it comes to the receipt of government benefits such as copyrights and trademarks:
EUGENE, Ore — The government doesn’t know what to make of the Slants, the all Asian American, Chinatown dance-rock band at the center of this term’s most vexing Supreme Court free-speech case.
One branch of the federal government has for years fought the band’s effort to register a trademark for its cheeky name. In a case going before the justices this week, the Patent and Trademark Office argues that a decades-old law forbids official recognition of trademarks that “may disparage” members of a particular ethnic group — in the Slants’ case, fellow Asians.
But other parts of the government love the Slants. The Defense Department sent the group to Bosnia and Kosovo to entertain troops; MPs were called when the party went on too long.
The White House is into them, too: The Slants were included in a compilation of Asian American artists that is part of an anti-bullying initiative — “deeply ironic,” says band founder Simon Tam, because the song chosen is “an open letter to the trademark office.”
Which must be a first for a Supreme Court plaintiff.
At Track Town Records in this college town, where the Slants were putting finishing touches on their new EP, “The Band Who Must Not Be Named,” Tam reflected on the mixed reaction.
“One branch of government is celebrating us for our work in the Asian American community, and the other area of government is calling us racist,” he said. “But I’m kind of used to it at this point.”
Contradictions abound in the case, Lee v. Tam. For one, a victory for the Slants would be a godsend for the Washington Redskins, whose legal battle to hold on to its revoked trademark has been put on hold pending the outcome. The band members abhor the Washington nickname and wince when the team’s fate is linked to their own.
“I don’t want to be associated with Dan Snyder,” Tam said, referring to the team’s owner.
Another oddity, at least to the band: The trademark office has registered several versions of the word “slant,” but turned down Tam’s application specifically because of the band’s Asian American connection.
Some Asian American groups support Tam’s attempt to reappropriate a slur and make it a point of pride, as other artists of color have done. Tam’s cause has united the American Civil Liberties Union and the conservative religious law organization Alliance Defending Freedom.
But groups of minority lawyers oppose them, and a coalition of liberal, minority members of Congress say that the First Amendment shouldn’t force the federal government to give a stamp of approval to hateful speech.
Today the Slants, the worry goes, tomorrow the n-word.
It’s a free country, and the Slants can call themselves whatever they want, Acting Solicitor General Ian Heath Gershengorn wrote in his brief to the court. But the government is under no obligation to provide the band with the legal protection and benefits that comes with trademark registration, such as nationwide, exclusive use of the trademark.
“Nothing in the First Amendment requires Congress to encourage the use of racial slurs in interstate commerce,” Gershengorn wrote.
The government is appealing a decision by the U.S. Court of Appeals for the Federal Circuit that found that the prohibition on the registration of marks that “may disparage . . . persons, living or dead, institutions, beliefs or national symbols” violated the First Amendment.
The government may not “penalize private speech merely because it disapproves of the message it conveys,” the court found.
The full Federal Circuit, which is charged with hearing patent and trademark cases, bought the First Amendment argument.
The Slants’ name is disparaging, the majority agreed. But it is also private speech that the government may not hinder by denying trademark registration, the judges held.
“Mr. Simon Shiao Tam named his band The Slants to make a statement about racial and cultural issues in this country,” wrote Judge Kimberly Ann Moore. “With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech.”
Tam’s attorneys tell the Supreme Court that the government cannot recognize only positive messages and reject negative ones, because that endorses one viewpoint over the other.
The disparagement clause “forbids the registration of Democrats are Terrible but allows the registration of Democrats are Wonderful,” lawyer John C. Connell writes. “It forbids the registration of Stop the Islamisation of America, but allows the registration of Encourage the Islamisation of America.”
I previously wrote about The Slants case back in December 2015 when the Court of Appeals for the Federal Circuit issued its ruling that the Patent and Trademark Office’s rules against supposedly offensive trademarks was unconstitutional. As I noted at the time, the case had the potential to have an impact well beyond the question of whether or not one band could trademark the name it is known by because a branch of government finds it “offensive” or otherwise unacceptable. Given the Supreme Court’s rulings on offensive speech in the recent past, it would seem fairly clear that the PTO has very few legs to stand on here. In several cases, including a lawsuit against the Westboro Baptist Church by the family of a fallen Marine whose funeral the Church picketed several years ago, the Court has made it clear that “offensiveness” in and of itself is not sufficient ground upon which to ban or punish speech. The Court has reaffirmed this position in several rulings that followed that case, many of them on a unanimous basis. On the other side of the ledger, of course, is a case that the Court decided in June 2015 in which it upheld a decision by the State of Texas to reject an application from the Sons of Confederate Veterans for a vanity license plate that included the Confederate Battle Flag was acceptable because the content of such a license plate was a form of “government speech” that the law was free to regulate. If the Court were to determine that the granting or denial of a trademark was somehow a form of “government speech,” it could use the precedent in that case to uphold the PTO’s action.
As George Will points out in a recent column, though, there’s clearly a difference between the license plate case and the argument that The Slants are making:
When the government registers a trademark, it is not endorsing or subsidizing a product. It should not be allowed to use its power to deny registration in order to discourage or punish the adoption of controversial expressions. By registering trademarks, government confers a benefit — a legal right — on those who hold them. Trademarks are speech. The disparagement clause empowers the Patent and Trademark Office to deny a benefit because of the viewpoint of the speech. This is unconstitutional.
Trademarks are not commercial speech — essentially, advertising — which is accorded less robust protection than that given to other speech. Eugene Volokh, a UCLA law professor, one of The Slants’ lawyers and a blogger for The Post, correctly says that the band’s name is expressive speech. The Asian Americans of The Slants agree. They say they adopted this name “to take on these stereotypes that people have about us, like the slanted eyes, and own them.”
The Patent and Trademark Office applies the disparagement clause by assessing “what message the referenced group takes from the applicant’s [trade]mark in the context of the applicant’s use” and denies registration “only if the message received is a negative one.” The office, which has denied trademark protection for The Slants, has given it to a band named N.W.A. which stands for (a version of the n-word) Wit Attitudes.
The office’s decisions are unpredictable because they depend on the agency speculating about what might be the feelings of others in hypothetical circumstances. This vague and arbitrarily enforced law, if such it can be called, chills speech by encouraging blandness.
Will is absolutely correct, of course. The fact that a trademark is somehow “offensive” according to the subjective opinion of one or more individuals at the Patent and Trademark Office should not, in and of itself, be sufficient grounds upon which they can base a decision denying a request for trademark protection based solely on the content of their speech. This is especially true given the fact that granting or denying a Trademark is, in the end, a purely ministerial and arguably simply a clerical act over which there should be very little arbitrary control by a government official. As long as all the other elements of the law are met and there is no other legal basis for denying the application, such as the fact that the scope of the trademark right requested is broader than the law allows, individual employees at the PTO should not be permitted to use this provision of the law to force their opinions on the rest of the country, or to deny a government benefit to someone for entirely subjective reasons. To argue to the contrary would be to say that another employee of this same office charged with reviewing patent applications would be free to deny a patent to the maker of a new birth control pill because they believe it would act as an abortifacient and they are morally opposed to abortion. That kind of arbitrary in the hands of one individual should never be acceptable.
As I noted when I first wrote about this, the outcome of this case will have a significant impact on the problems that the Washington Redskins have faced in protecting their own trademark. The provision of law under which The Slants were denied a trademark is the same provision that a PTO appeals board relied upon when it revoked the team’s trademarks even though they had held them for more than half a century and that the law that was in place when they applied for the trademark is the same law that is in effect today. When the team appealed the board’s decision in Federal Court, a Federal District Court Judge upheld the decision in a ruling that largely accepted the Board’s findings regarding the alleged disparaging nature of the trademarks. There doesn’t appear to have been much significant action in that case since that decision, likely because the case is on hold pending the outcome of the Court’s ruling in this case, but the relevance of the case to the Redskins fortunes should be clear. If the Court rules that the provision of the law permitting denial of trademarks when the content of the mark is somehow “offensive” is unconstitutional, then the case against the Redskins trademark would completely fall apart as lower court’s would be compelled to follow the Supreme Court’s precedent on the matter. If the Court rejects the argument that The Slants are making, the Redskins case becomes much more difficult, if not impossible, to win.
