Members of the Asian-American rock band The Slants have the right to call themselves by a disparaging name, the Supreme Court says, in a ruling that could have broad impact on how the First Amendment is applied in other trademark cases.
The Slants’ frontman, Simon Tam, filed a lawsuit after the U.S. Patent and Trademark Office kept the band from registering its name and rejected its appeal, citing the Lanham Act, which prohibits any trademark that could “disparage … or bring … into contemp[t] or disrepute” any “persons, living or dead,” as the court states.
After a federal court agreed with Tam and his band, the Patent and Trademark Office sued to avoid being compelled to register its name as a trademark. On Monday, the Supreme Court sided with The Slants.
“The disparagement clause violates the First Amendment’s Free Speech Clause,” Justice Samuel Alito wrote in his opinion for the court. Contrary to the Government’s contention, trademarks are private, not government speech.”
The band has said it wanted to reclaim what is often seen as a slur.
“We grew up and the notion of having slanted eyes was always considered a negative thing,” Tam said in January. “Kids would pull their eyes back in a slant-eyed gesture to make fun of us. … I wanted to change it to something that was powerful, something that was considered beautiful or a point of pride instead.”
Attorney Lee Rowland of the American Civil Liberties Union welcomed the Supreme Court’s decision:
“The government’s misguided effort to protect minorities from disparagement instead hurt members of that very community by hindering their right to compete in the marketplace of ideas. Fortunately, today’s opinion prevents the kind of absurd outcome that results when the government plays speech police.”
The case could inform arguments over other, much larger entities than The Slants.
As NPR’s Nina Totenberg has reported, “the trademark office has denied registration to a group calling itself “Abort the Republicans,” and another called “Democrats Shouldn’t Breed.” It canceled the registration for the Washington Redskins in 2014 at the behest of some Native Americans who considered the name offensive.”
In his opinion about another facet of the case, Alito wrote:
“There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”
The judgment was unanimous — with two asterisks: Justice Neil Gorsuch, who wasn’t yet on the court when the case was argued in January, did not take part. And with different parts of the case drawing differing legal explanations, four opinions were written.