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Supreme Court To Hear Argument In Free Speech Case

law-gavel-lights

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:

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.

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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. CSK says:

    Forgive me if I missed something, but shouldn’t The Slants be accorded trademark protection on the same basis NWA was?

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  2. Rick DeMent says:

    Well the DC football team could change their logo from a Native American to a potato.

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  3. CSK says:

    @Rick DeMent:

    Or they could move to Canada and call themselves The Yukon Golds.

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  4. michael reynolds says:

    @Rick DeMent:

    Or a peanut.

    Doug, I’m with you and Will. It is outrageous that the government should use copyright law to bully artists into adopting a speech code.

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  5. MarkedMan says:

    @CSK:

    be accorded trademark protection on the same basis NWA was?

    FWIW, I don’t think they would have accorded a trademark to “N*ggers With Attitude” which is what NWA stood for. But “NWA” is just a triplet of letters.

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  6. Just 'nutha ig'rant cracker says:

    @CSK: Well yes, except for… because, that’s why.

    Today the Slants, the worry goes, tomorrow the n-word.

    Sorry minority lawyers group, but as George Will notes, NWA beat The Slants to the slippery slope by about, what…30 years? Maybe you got the order reversed–30 years ago NWA…

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  7. Slugger says:

    If they give trademarks to offensive speech, I will trademark,”F**k you, Trump!” and get rich off the royalties.

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  8. gVOR08 says:

    A couple of observations:

    I’m not a lawyer, but one of my rules of technical writing is that no matter how carefully you craft your rules, the second case that comes up won’t fit. I doubt legislators and judges do much better. You always have to allow for judgement calls. The law finds that hard.

    Two, this is a borderline case, clear cases don’t reach the Supreme Court. But the Supremes don’t feel they can make a judgement call and just say, ‘It’s OK this time, but maybe not the next.” They have to leave a rule. (Except, of course, if they can declare a GOP President. (Which some feel then makes W absolutely “legitimate”.)) Left to me, I’d say the law set up a mechanism for making the judgement call. Right or wrong, the call of the PTO stands, next case.

    Three, this, and the Redskins case, are trivia. My real reaction is – meh.

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  9. gVOR08 says:

    @MarkedMan: You mean to say George Will left out a critical fact? You can imagine my shock and surprise;-)

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  10. CSK says:

    @MarkedMan:

    The abbreviation was NWA. But the group name was Niggaz Wit Attitude, and that is what they asked to be trademarked. Given that precedent, I see no reason why the same consideration ought not to be given to The Slants.

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  11. CSK says:

    And I think Northwest Airlines had already trademarked NWA.

    A quickie search indicates that there are current trademarks for two entities known respectively as HIMNIGGA SHIT and ENIAS–EVERY NIGGA IS A STAR.

    In view of that, what’s the issue with The Slants?

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  12. Gustopher says:

    @CSK: Northwest Airlines and Niggaz Wit Attitude are in entirely different domains, so their acronymed trademarks don’t conflict.

    Now, if Niggaz Wit Attitude branched out into the airlines business (Niggaz Wit Altitude), there would definitely be conflicts.

    (I’m making most of this up, I mostly just wanted to say NIGGAZ WIT ALTITUDE would be the best airline name ever)

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  13. CSK says:

    @Gustopher:

    And their official theme song would thus be “F*ck Da Police.”

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  14. Pch101 says:

    The purpose of trademark is to prevent consumer confusion. For example, a trademark on Coca-Cola bars others from producing a brown fizzy beverage that has the same or similar name, or from using a reddish label with cursive writing that looks a lot like the Coca-Cola logo to be slapped onto other products as if those products are somehow connected or supported by the makers of the drink.

    The Slants have every right to play live, sell records, or whatever. The issue with trademark is whether they can prevent another band or other group from using their name.

    It’s quite possible to have a band without a name that is trademarked. To frame this as a free speech issue is disingenuous. This is an intellectual property case — the question is whether The Slants have exclusive use of the name within certain contexts such as musical performance.

    And the Slants have the same benefits of copyright protection as does any other artist. Even if another group called itself The Slants, it can’t just illegally distribute the “real” Slants music without the original group’s consent. If you write a song, then you own it and others can’t use it without your permission. Likewise, if you record your performance of a song, then that performance belongs to you.

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  15. Tony W says:

    @Gustopher:

    Niggaz Wit Attitude

    Just take my up-vote and go home.

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  16. gVOR08 says:

    @Gustopher:

    NIGGAZ WIT ALTITUDE

    Am I the only one on this site old enough (and weird enough) to remember the Truth and Soul agency and the airline ad they produced in a 60s movie called Putney Swope?

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  17. CSK says:

    @Pch101:

    Yes, but that’s not the rationale being given for not trademarking it. The rationale is that offensive terms can’t be trademarked, and clearly that is not true, given that Every Nigga Is A Star and Himnigga Shit have been trademarked.

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  18. Pch101 says:

    @CSK:

    “Nigga” ≠ “nigger”. The latter is a racial slur, the former is not.

    In any case, trademark law is not an enumerated power. The argument is that the government has some discretion in determining who gets trademark protection and who does not, as there is no obligation to provide it.

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  19. CSK says:

    @Pch101:

    Come on–“nigga” isn’t a racial slur? So I can use it? So if I ‘m introduced to the First Lady, and instead of saying, “How do you do, Mrs. Obama,” I say “What up, my nigga,” that’s not grossly offensive?

    Please.

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  20. MBunge says:

    @Pch101: “Nigga” ≠ “nigger”. The latter is a racial slur, the former is not.

    A whole bunch of white people would be thrilled to find that out. Maybe you should expand on the topic for a post on Breitbart.

    Mike

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  21. Pch101 says:

    @CSK:

    “Nigga” is used as a term of endearment among African-Americans. Arguably, you can use it if you’re black; not such a good idea to use it if you aren’t.

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  22. Pch101 says:

    @MBunge:

    Neither you nor your friends at Breitbart do very well with nuance.

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  23. CSK says:

    @Pch101:

    By that standard, then, “slant” is a term of affection used by Asian-Americans, and thus entitled to tm protection.

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  24. Pch101 says:

    @CSK:

    Nothing is “entitled” to trademark protection, as it isn’t an enumerated power. If Congress wanted to scrap trademark protection altogether, it could.

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  25. Senyordave says:

    The Washington football team should win this one easily. Now if only the team officials would shut their mouths about how “Redskins” isn’t a slur and is really meant to honor Native Americans. Pretty much every dictionary I’ve ever seen lists the word as derogatory.

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  26. wr says:

    @CSK: “By that standard, then, “slant” is a term of affection used by Asian-Americans, and thus entitled to tm protection”

    Except that, of course, one exists in reality and the other doesn’t.

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  27. HarvardLaw92 says:

    @Pch101:

    Agreed, but somewhat tangential. Once Congress legislated it into being, constitutional mandates became applicable to its enforcement.

    That said, I agree. This isn’t a 1A issue. Trademarks aren’t expressive speech; they’re protection of an IP interest. Violating the 1A would IMO require the government saying “you can’t call yourself this or that”. There is no restraint here – prior or otherwise – with respect to the band calling itself whatever it likes. The 1A isn’t implicated.

    There’s certainly a basis for asserting an equal protection violation based on capricious application, but they aren’t making that argument.

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  28. Pch101 says:

    @HarvardLaw92:

    At the end of the day, this is an attack on the agency’s discretionary powers that is disguised as a First Amendment case.

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  29. HarvardLaw92 says:

    @Pch101:

    No argument. Just saying that IMO it’s deeply flawed

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  30. Pch101 says:

    @HarvardLaw92:

    I think that we are in violent agreement about this case.

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  31. CSK says:

    On the other hand, we have the case of Bristol Palin and Sarah Palin trademarking their names. I mean, dammit. I was so looking forward to cashing in on my music podcast of Bristol Palin’s Hermeneutics of Jonas of Bobbio’s Commentary on the Life of Saint Columbanus.

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  32. Just 'nutha ig'rant cracker says:

    @gVOR08: Possibly. I’m old enough to remember the movie, but young enough so that I wasn’t able to see it when it ran. (I was 17, and it was rated R. Growing up among the Baptists, I wasn’t supposed to go to any movies and certainly didn’t sneak into R-rated ones.)

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  33. Paul Hooson says:

    I can understand some regulations on commercial television or radio to protect minors from some extreme speech, but in most other areas, government has no legitimate right to ban offensive or even obscene speech or put persons prison for subjective obscenity crimes.

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  34. Slugger says:

    @Paul Hooson: We all agree with you there. A trademark is different. The band can call itself “The Slants” and currently has about 140 pieces on YouTube. Likewise, the D.C. football team calls itself whatever it wants and seems to have plenty of fans. Limiting trademarks based on offensiveness seems silly to me but does not prevent success. Back when I was young, there was a band called “The Fugs.” They weren’t all that great but had some success. I don’t know if they had a trademark. I can’t imagine that George Will liked their name.
    Protection of the work of creative people and protection of the public from faked products is obviously the big job.
    There will always be artists and crazy people who offend us.

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  35. Mr. Bluster says:

    The Fugs.
    Boobs a Lot

    https://www.youtube.com/watch?v=EPVgKoruWdA
    (Sik Fuks that they were my college roommates played this all the time. I couldn’t get away from it.)

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  36. Kylopod says:

    I also remember reading about this case, which has some obvious parallels:

    In 1992, Russell Lawrence Lee petitioned a court in California to change his name to “Mister Nigger” saying he intended to “steal the stinging degradation – the thunder, the wrath, the shame and racial slur – from the word `nigger’.” His request was refused.

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  37. Tyrell says:

    @Senyordave: Look, I have suggested alternative names such as “Generals”, “Warriors”, “Colonials”. It does not matter to me. What does matter is bringing the Lombardi Trophy back to Washington.
    How about it, Mr. Snyder ?

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  38. SKI says:

    As HL92 & PSC101 laid out, this isn’t a Free Speech case. In point of fact, and somewhat ironically, the band is asking the Court to force the Government to restrict others’ speech by granting them a trademark.

    That being said, I’m hoping that the long-term result is one that has a Federal court explicitly find as that the DC NFL team’s name is racist but that they can, if they wish, keep being racist
    (by allowing the trademarking of the racist name).

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  39. Jim Brown 32 says:

    @Pch101: Larry Wilmore apparently read the same memo. And it didn’t get him a pass.

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  40. C. Clavin says:

    They should just defer this case…just kick the can down the road a bit.
    By the end of the Trump administration the 1st Amendment will be absolutely meaningless.

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  41. Tyrell says:

    I remember a situation years ago. A restaurant got into a fix over a trademarked name: “Olympic”.
    Seems the Olympic Committee somehow found out and contacted them.
    An overactive fan once told me that the tiger paw symbol is exclusive property of Clemson University Athletic Department. I was skeptical about that.
    The main focus now is if the Packer’s defense can stop the high scoring Falcons.

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  42. DrDaveT says:

    Despite possible appearances to the contrary, this is a serious legal question for the attorneys who post and comment here:

    The law recognizes the concept of ‘standing’ in some cases. As in, some people have standing to bring a particular lawsuit, and others do not. Is there no similar concept when it comes to offensive speech? Or, to go a different direction with it, it is not possible to libel or slander oneself. The law recognizes that who is saying bad things about you matters.

    It seems perfectly obvious that Danny DeVito can use the word ‘runt’ without offending short people in a way that, say, Dikembe Mutombo cannot. Ironic capture of language that is intended to be offensive is an ancient and venerable tradition — but can only be accomplished by those who would normally be the target of the epithet. (Thus, for example, the Q in LGBTQ.)

    Is there really no precedent along these lines somewhere?

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  43. Kylopod says:

    @DrDaveT:

    Ironic capture of language that is intended to be offensive is an ancient and venerable tradition — but can only be accomplished by those who would normally be the target of the epithet. (Thus, for example, the Q in LGBTQ.)

    Yes, but the specific examples aren’t all the same. The N-word is really in its own category; it isn’t just an example of a slur being reclaimed by the group but has long been used in the African American community in complex (and often contradictory) ways.

    I’d also disagree with you about “queer.” It has actually come to be the preferred term in the academic world, which people of all sexual orientations may use. In colleges people routinely talk about Queer Studies and you’ll find courses with names like Queers in Cinema. It took me aback the first time I encountered this practice but I came to realize it was quite prevalent in academia.

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  44. HarvardLaw92 says:

    @DrDaveT:

    It’s certainly possible to defame yourself – just march into a crowd and announce that you have a thing for (very) young boys. Despite being false, your reputation will take an immediate nosedive.

    There is just no way for a court to grant relief in that circumstance. Guilty. You owe yourself $20,000. Pay up ..:

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  45. DrDaveT says:

    @Kylopod:

    I’d also disagree with you about “queer.” It has actually come to be the preferred term in the academic world, which people of all sexual orientations may use. In colleges people routinely talk about Queer Studies and you’ll find courses with names like Queers in Cinema.

    I think that makes my point for me. It was a slur, then it was reclaimed by the slurred party, and now it has been rehabilitated to the point that anyone can use it, so long as they use it in the way actual Queers do.

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