“The disparagement clause violates the First Amendment’s Free Speech Clause. Contrary to the Government’s contention, trademarks are private, not government speech. Because the ‘Free Speech Clause… does not regulate government speech’…the government is not required to maintain viewpoint neutrality on its own 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.”
In writing for the entire eight-member US Supreme Court Monday morning, Justice Samuel Alito told Simon Tam and his band, The Slants, that they were correct in their fight and justified for refusing to accept that their name was disparaging to Asian Americans and therefore ineligible for trademark protection.
This was a case eight years in the process. Tam, the founder of the Portland, Oregon-based Slants and its bassist, has spent the better part of the past decade fighting for this moment. On Monday, the court ruled that the US Patent and Trademark Office was incorrect in using Section 2A of the Lanham Act to justify denying the band its trademark on the grounds of it being “disparaging” to Asian Americans.
“The disparagement clause denies registration to any mark that is offensive to a substantial percentage of the members of any group,” Alito writes. “That is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint.” Pointing to another case, Alito says that the “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”
This is a huge victory not just for The Slants but for any group trying to secure trademark registration and protections for its name or cause.
— 𝖠𝗌𝗂𝖺𝗇 𝖠𝗆𝖾𝗋𝗂𝖼𝖺𝗇 𝖫𝖾𝗀𝖺𝗅 (@aaldef) June 20, 2017
Does it have downsides a drawbacks? Probably.
Many publications are pointing to the Washington Redskins, a team that asked the Supreme Court a year ago to consider its trademark petition and case against the USPTO instead of the Slants. The team lost its trademark protection in 2014.
The Slants understand that many will want to link the case and see the two incidents as being on equal footing, but there’s a key difference: The Slants have strong and widespread support for their name among Asian Americans and Pacific Islanders; the NFL team cannot say they have the support of Native American communities.
“Nothing in the opinion undermines the decision of the (USPTO) or the District Court that the term ‘redskin’ disparages Native Americans,” Jess Witten, an attorney for Native Americans who has been fighting against the football team’s name, told the Washington Post.
“The Supreme Court vindicated the team’s position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government’s opinion,” said Lisa Blatt, an attorney for the football team.
The team’s controversial owner, Dan Snyder, released a statement Monday saying simply, “I am THRILLED. Hail to the Redskins,” the Post reports.
— Colin Clemente Jones (he/him) (@thisColin) June 19, 2017
When asked by the New York Times if he’d received any note of congratulations or thanks from Snyder or anyone affiliated with the football team, Tam said no. “But if I ever did, I’d be happy to send them some legal bills.”
For Tam and the band, which just wrapped up a tour that saw them performing before and speaking with law students across the United States, as much as they wanted to make a name for themselves and reclaim a term for their community, the full story doesn’t begin or end with The Slants.
“It’s a win for all marginalized groups,” Tam told the Times. “It can’t be a win for free speech if some people benefit and others don’t. The First Amendment protects speech even that we disagree with. You can’t say you want to shut down the conversation for other people because that doesn’t advance progress. No one builds better communities by shutting people out.”
He has previously pointed out in many interviews that the USPTO had issued and protect the names of other groups, mainly backed by Caucasians, with offensive names, including the Ku Klux Klan. In fact, the USPTO has even approved trademark applications for other groups that have included the word “slant” or “slanted” in their names or logos—the difference being those groups were owned or organized by Caucasians.
There have been several comments on social media agreeing with this mindset, that even if it means the Redskins can retain their name and regain their trademark, a victory for the Slants is ultimately the right decision by a court that continues to uphold and keep nearly sacred the protections embodied by the First Amendment.
As Sports Illustrated points out, “It is worth noting that the Redskins are not completely dependent on federal trademark law to repel counterfeits and to protect their brand name. The team enjoys other, albeit weaker, legal protections to accomplish those same goals. Those other protections can be found in states’ laws and in licensing contracts between the Redskins and businesses that produce merchandise and apparel with ‘Redskins’ on them. Still, losing federal trademark registration would be economically damaging to the Redskins. The registration supplies the strongest source of trademark protection for the team.”
The football team’s case was shelved by both the Supreme Court and lower courts pending the ruling in The Slants’ case. Don’t be surprised if it surfaces again sooner rather than later.
But for now, there’s some celebration in The Slants camp.
The Chicago Tribune editorial board writes, “When the Slants perform, anyone who objects to their name is free to boycott, protest or mobilize criticism on social media. But using the power of the federal government to punish them should not be an option. Thanks to the Supreme Court, it no longer is.”