It’s not hard to imagine this conversation.
“Hey, I’ve discovered a really cool new band called The Slants.”
“The Slants? What a racist name! What’s wrong with these people? THEY MUST BE SHOUTED DOWN! TO THE INTERNET! WE MUST EXPRESS OUR COLLECTIVE OUTRAGE!”
“Hang on. Every member of the band is Asian-American and their fanbase–also significantly Asian-America–really dig this. Does that change things for you?”
“Oh. Um… Hey, look at the time! I gotta go!” [Exeunt in the most convenient direction. Hastily.]
That, in a nutshell, is the situation facing The Slants. Should they be able to use this name–as a trademark, no less–given their ethnicity? What matters more: the racist interpretation of their name or the cries of discrimination for not allowing them to use it? Amber Healy of sister site Geeks&Beats has been following the Slants saga very closely.
Early in the morning of December 22, Simon Tam woke up to a push notification on his phone. An attorney from the American Civil Liberties Union sent him a message about waking up to victory.
Bleary eyed and confused, Tam got out of bed and flipped open his laptop, where he found an email from his lawyer. The email contained a 110-page decision from the US Court of Appeals for the Federal Circuit, in Washington, DC, in which the majority of an en banc panel of all 12 justices at the court ruled in favor of Tam, bassist for the Portland, Oregon-based band The Slants, that denying them a trademark for their name was “viewpoint discrimination” and, as a result, a violation of the band’s First Amendment rights.
Tam, who last appeared behind his lawyers at the federal court in October, expectedthe decision to come out early this year and, in a previous conversation at that time, told me he kind of expected the court to find in favor of the US Patent and Trademark Office (USPTO), which had denied the band its trademark registration because the office deemed it was offensive to members of the Asian-American community. As one of four Asian-Americans in a dance-pop band, Tam has spent the past five-and-a-half years fighting for something that’s been awarded to countless other businesses, some of which have used the word “slant” without a single complaint or concern from the USPTO.
“Basically, what the court did was struck down section 2A of the Lanham Act as unconstitutional,” Tam explains. “In other words, the government can’t deny you a right or restrict your speech in any way because they don’t like your speech. Even if they disagree with it or someone might find it offensive, it’s still your fundamental American right to have that protection.”
This isn’t a simple binary issue. Or is it? Keep reading.