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Supreme Court Appears Skeptical Of Law Barring ‘Offensive’ Trademarks

Supreme Court Building

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

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. DrDaveT says:

    The band says it sought to adopt and reform a disparaging term about Asians, much as some gay people have embraced the term “queer.”

    Hey, they stole my argument! I want royalties…

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  2. Pch101 says:

    It’s odd how they haven’t figured out that trademark protections are a restriction on speech.

    Trademark law doesn’t prevent The Slants from calling themselves The Slants, the Redskins from calling themselves the Redskins or whatever. Rather, it prevents everyone else from using those names.

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  3. HarvardLaw92 says:

    Trademarks are not expressive speech. They’re protections of an IP interest. The 1A is not implicated here.

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  4. Just 'nutha ig'rant cracker says:

    @HarvardLaw92: And yet, the rejection by the Trademark office was not based on an IP issue but on the offensiveness of the name. Hmmmm….

    I get that they *shouldda* gone with “we’re not granting this because we don’t wanna (or your name doesn’t qualify),” but that’s not what they chose to do.

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  5. Pch101 says:

    @Just ‘nutha ig’rant cracker:

    The trademark office can’t prevent The Slants from playing music or the Redskins from playing football. It can only decide whether those groups have federal protections for the exclusive use of those names within certain contexts.

    Per Congress, trademark law does not allow trademarks for “immoral, deceptive, or scandalous matter.” One can debate exactly what that means or claim that those criteria themselves are unconstitutional, but as of today, the patent office generally has a legal obligation to not extend trademark protection in those instances.

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  6. HarvardLaw92 says:

    @Just ‘nutha ig’rant cracker:

    Which brings the argument into specific relief. What they should be pressing, IMLO, is an equal protection violation predicated on capricious application. That has merit, but calling a restrictive protection afforded to an intellectual property interest speech is just stretching the 1A far beyond what it actually says / was intended to do.

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  7. Pch101 says:

    @HarvardLaw92:

    That’s a good argument if the goal is to actually win the case on the facts for The Slants.

    For a right-wing ideologue that wants to require the agency to give trademarks to “politically incorrect” speech as a matter of course, that won’t be enough, hence the overreaching. Volokh is using this case for his own ends.

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  8. rodney dill says:

    I guess my “F#ckNuts Peanut Emporium” is still a go then.

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  9. MarkedMan says:

    I think this is a tough case, to the point where I don’t really have an opinion. Normally, I would be happy to let the Supreme Court make the call, but no longer trust their opinion on these types of things as it seems they are increasingly out of touch with the real world. They tend to write stuff in their opinions about how they expect actual human beings to behave in reaction to their decisions that, for someone with actual experience in the real world, is nonsensical. It’s not just the conservatives, in rulings from health care to campaign finance, they seem incredibly sure about how things will play out and (taking the modern day Republican point of view) ignore what actually happens in favor of their theoretical world view.

    So I fear they will create a ruling that essentially says The Slants can trademark, but this ruling will not result in trademarks like “N*ggers Must Die” or “All Southerners Are Dumb F*cks”. And then we will see those things immediately happening.

    Shorter version: It’s one thing for them to rule that all trademarks must be allowed. Like, I said, I see the pros and cons of both sides of that argument. But I fear they will rule in a way that has that effect because they naively believe it won’t happen.

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  10. gVOR08 says:

    @Pch101:

    Volokh is using this case for his own ends.

    @MarkedMan:

    I think this is a tough case, to the point where I don’t really have an opinion.

    I also don’t have an opinion, not because it’s a tough case, but because I am having trouble giving a spit whether the Slants or the Redskins can get trademarks. The only thing interesting about this is Doug’s fascination with it.

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  11. Just 'nutha ig'rant cracker says:

    @gVOR08: Well that’s kind of where I’m at too, but it was nice of HL92 and pch to go into more detail about what their respective points were so. I understand where HL’s statement that they are asking for the wrong relief comes from now.

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  12. grumpy realist says:

    @Just ‘nutha ig’rant cracker: The Lanham Act (which is what governs trademarks) contains the section about refusing disparaging trademarks. It actually is an IP issue.

    SCOTUS, like usual when it gets involved in IP issues, is taking hold of the wrong end of the stick.

    I suspect they’re going to strike down the disparaging trademarks section of the Lanham Act, and then shrug their shoulders at all the resultant fallout when the alt-right stampedes into trademarking every racial epithet under the sun.

    Bring on the asteroid…

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  13. Pch101 says:

    @gVOR08:

    It’s not motivated by a desire to help the Slants or to advance intellectual property rights, it’s about preventing the federal government from protecting minorities.

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  14. Gromitt Gunn says:

    I am not a lawyer and don’t pretend to be. This paragraph from the quoted article seems ridiculous to me as a lay person whose legal education consists of high school civics and six credit hours of graduate business law:

    “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.”

    I don’t understand how that case could support the government here, since that case deals with governmental speech and not governmental regulation of speech. I’m interested in understanding how my current understanding may be incorrect.

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  15. Pch101 says:

    @Pch101:

    To clarify this point, it’s about validating the war on civility/ political correctness.

    Without a trademark protecting this particular ensemble, we could have 200 musical groups called the Slants. The trademark office can’t prevent them from playing, it just won’t give any of them the right to sue each other for infringement.

    Similarly, we could also conceivably have various versions of Slants toilet cleaner, Slants soy sauce, Slants footwear or whatever. If the Slants musical group had a trademark but can’t show a connection between its enterprise and those products, then it can’t keep them from using the name.

    What this is really about is having the government provide some official sanction for acts of racism. This provides pleasure to conservatives who resent the idea of bigotry being inappropriate. In this case, trademark is being equated with endorsement, an attaboy for their sense of racial superiority.

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  16. Tyrell says:

    @rodney dill: How about
    “Dick’s Hot Dog Stand” ?

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  17. rodney dill says:

    @Tyrell: I like it.

    How ’bout a real one

    https://www.facebook.com/Dicks-Incredible-Nuts-390121041059839/

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  18. C. Clavin says:

    I’m not sure if it’s good or bad, that I had to think for several moments about why “The Slants” was offensive.
    Got it…

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  19. C. Clavin says:

    OT…
    If you are a thinking person, and realize that Trump poses an existential danger to this nation, I recommend that you boycott TV coverage of tomorrows inauguration.
    As we all know the man is a narcissist, and the only way to get to him is to ignore him. The best way to send Trump a message is by low ratings. He will of course lie about them…but, trust me, he will know. During the campaign the media abdicated their responsibility in exchange for ratings; don’t help them now to destroy the Republic.

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  20. bill says:

    slowly, sanity will start to work it’s way back into this country. and thin skinned whiners will have to see if their doctors can prescribe some “growacet” or it’s generic equivalent.

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  21. HarvardLaw92 says:

    @bill:

    :roll:

    The sad thing is, I suspect you actually believe this.

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  22. C. Clavin says:

    @HarvardLaw92:
    My guess is that, while clearly white and ignorant, bill is not wealthy…so he will soon pay the price for voting foolishly.

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  23. gVOR08 says:

    @Pch101: In Doug’s case, I think it’s a concern that any relaxation of free speech absolutism is a slippery slope to campaign finance restrictions.

    (I see the argument that this isn’t really a First Amendment case, but I don’t thing Doug is looking at it strictly from a legal viewpoint.)

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  24. michael reynolds says:

    There’s still intelligent (mostly) political discussion going on here: http://theglitteringeye.com/

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  25. bill says:

    @C. Clavin: dude seriously? try reading some of your gibberish in here some time- it’s painful to think an adult can really “think” like that. but you’re not alone, tons of people just like you vote…..

    @HarvardLaw92: i do, this country is getting way to effete. it’s like we want to be europe or something, and europe sucks. sure. it’s nice to visit but how anyone would choose to live there when they’ve got America is just idiotic.

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  26. HarvardLaw92 says:

    @bill:

    Oh no, Bill, I get WHY you would want it to happen.

    I’m just amused that you actually believe it will.

    Helpful hint – people will still look at you like a leper when you spout off and call someone a n*gger.

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  27. bill says:

    @HarvardLaw92: um really, when have i called anyone a nagger in here? (fyi- you may not realize it but my gf is black, and a legal immigran)-not that i give a sheet)
    and really, at the end of the day i have no qualms about being outnumbered in here…it’s actually fun to be right vs. wrong.

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  28. HarvardLaw92 says:

    @bill:

    How do you manage to sneak her into the Klan rallies?

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  29. bill says:

    @HarvardLaw92: lameus maximus- i’d expect better from someone who feels the need to throw any type of “harvard bs” in his/her id. but then again, you’re probably “corvette guy/chick” on some other site.
    @C. Clavin: back to you- what exactly did obama do for anyone that’s not as wealthy as he? bear in mind- he became wealthy while president…..which is just not right on so many levels.
    but in reality- there are lot’s of people who vote their conscience, not for their “self”. it must be hard for people like you to understand the whole “country before me” thing but it was just 50+ yrs ago when JFK said it.

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  30. HarvardLaw92 says:

    @bill:

    I give you what I think you merit.

    And you take the bait every time …

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