Published on January 18th, 2017 | by Amber Healy1
The Slants Have Their Day in Court
It’s a moment five years in the making.
On Wednesday, Simon Tam and his band, The Slants, along with their legal team, will present their argument before the United States Supreme Court. The question at hand is whether the US Patent and Trademark Office (USPTO) is allowed to deny them trademark protections for their name because the government agency has determined it to be disparaging to Asian Americans.
The Slants, from Portland, Oregon, are so named because Tam, the band’s bassist, wanted to reclaim the word and challenge misconceptions of his community. USPTO has denied the band’s trademark request through multiple courts, claiming the name is “disparaging” or otherwise offensive to a particular community as defined by Section 2(a) of the Lanham Act, a dusty bit of law that is seldom used and often misunderstood.
More than a dozen briefs have been filed in support of The Slants, while the USPTO, in their most recent filing with the Supreme Court, insist on identifying Tam as the band’s lead singer. That’s neither here nor there, of course.
The Slants and their case appeared on the front page of USAToday Tuesday, with Tam telling reporter Richard Wolf “We need to allow freedom of expression, especially with those you disagree with the most. Satire, humor, wit and irony—those are the things that will truly neuter malice.”
As Wolf explains: “At issue is nothing less than freedom of speech: Does a federal law that empowers the Patent and Trademark Office to turn down applications it deems disparaging violate the First Amendment? In Washington, where a president-elect who criticizes his opponents on Twitter is redefining the outer boundaries of appropriate speech, such power to police language seems almost quaint.”
In the Washington Post, Tam makes it clear, for the 20th time if not more, that this case is not the same as the one the Washington Redskins have been fighting, although the central argument might be seen by those not terribly familiar with either case as being the same: While The Slants have the support of multiple organizations working for the benefit and support of Asian Americas, the same is not true of the NFL team and Native Americans. In fact, while the team asked the Supreme Court to review their case instead of The Slants, the court rejected their request. It’s likely the verdict in this case, to be released in the spring or early summer, will have implications for the team.
“I don’t want to be associated with Dan Snyder,” Tam tells the Post, referring to the team’s owner.
Robert Barnes, writing for the Post, notes that “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,” something Tam calls “deeply ironic” because the song chosen for the album is “an open letter to the trademark office.”
“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,” Tam continued. “I’m kind of used to it at this point.”
One ongoing chorus of the five-year fight the band has undertaken is the disparity with which language is considered disparaging.
“Every single racial slur you can think of for Asian Americans is a trademark right now. And almost any kind of slur you could think of for any group is a registered trademark right now. The law’s not working,” Tam said.
As he told this organization nearly two years ago, it’s tremendously odd that a group of mostly white men have been debating whether it’s ok for an Asian American band to use a word that has been used against Asian Americans.
When A Journal of Musical Things first spoke with Tam, in July 2015, Tam described court appearances as nothing like Mr. Smith Goes to Washington, the Jimmy Stewart movie.
“There’s not a lot of love for me toward the trademark office,” he said at the time. The deeply ironic thing about all of this is that we’re going to have my white attorneys arguing with the white attorneys at the trademark office before all white judges about what’s offensive to Asian people and the only Asian in the room will not be allowed to talk. But that’s government for you.”
The Supreme Court will hear the case Wednesday morning and will release its verdict sometime later this year, before the court adjourns for the term in June. There’s no way of knowing when the ruling will be released until it is published, but rest assured we’ll be watching.
The Slants are also embarking on a tour this winter and spring, including a date in Buffalo on April 26 amidst a series of conferences, bars and law school performances. If you’ve been looking for some Chinatown dance-rock, check them out.