The Supreme Court on Monday ruled unanimously in favor of the Asian-American rock band The Slants right to trademark its “offensive” moniker after the Patent and Trademark Office refused to register the name on the grounds that it is disparaging to Asians.
In the court’s ruling on the case, Matal v. Tam, Justice Samuel Alito crushed the federal government’s claim that it has interest in protecting Americans from speech they may find offensive.
“We now hold that this provision violates the Free Speech Clause of the First Amendment,” Alito wrote. “It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
In response to the Trademark Office’s claim that it has a duty to block registrations of offensive ideas, Alito added: “That idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
Slants bassist Simon Tam, an Asian American, took the case all the way to the Supreme Court because he found the government’s wrongheaded interpretation of his band name as hateful to a group to which he belongs totally absurd.
The band name, Tam told Reason in an April interview, was in fact meant to redefine American cultural stereotypes of the nation’s Asian population.
From the interview:
The name has never been provocative. I actually thought it was kind of funny. We can flip the slur around and do a positive, self-empowering kind of thing with the word. That being said, I have never been called a “slant” in my whole life. I’ve been called many other things. Asian Americans have been using the term slant for decades already. The biggest, or one of the biggest, film festivals in North America, as far as Asian-American films go, is called the Slant Film Festival. And there is Slant magazine. It is kind of this cool, hip thing in our communities. So I was like, “It’s no big deal.”
Tam told the libertarian magazine that his initial shock at having the trademark application denied was compounded when he learned that the bureaucrats based their decision on information gathered on the word “slant” from Wikipedia and urbandictionary.com.
Another reason for blocking trademarks it finds offensive, the Trademark Office argued in the case, is that by issuing a trademark the government is essentially endorsing the term as official government speech.
Alito made quick work of destroying this argument as well.
“If the federal registration of a trademark makes the mark government speech, the federal government is babbling prodigiously and incoherently,” Alito wrote. “It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public.
“For example, if trademarks represent government speech, what does the government have in mind when it advises Americans to ‘make.believe’ (Sony), ‘Think different’ (Apple), ‘Just do it’ (Nike), or ‘Have it your way’ (Burger King)? Was the government warning about a coming disaster when it registered the mark ‘EndTime Ministries’?
Alito also noted that the Trademark Office’s broad attempt to define and police “offensive” trademarks in commercial speech could lead to the outright destruction of free speech as we know it.
“It is not an anti-discrimination clause; it is a happy-talk clause,” Alito wrote. “In this way, it goes much further than is necessary to serve the interest asserted. The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution. Is it conceivable that commerce would be disrupted by a trademark saying: ‘James Buchanan was a disastrous president’ or ‘Slavery is an evil institution?’
“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.”
Following the SCOTUS ruling on The Slants, the Washington Redskins are likely to reapply for the team’s name trademark. The Trademark Office in 2014 revoked registration of the name on the grounds that it is offensive to Native Americans.
“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,” team lawyer Lisa Blatt said in response to Monday’s ruling.