Rockers face court hearing over ‘slur’
An Asian-American rock band called the Slants tried in 2011 to trademark its name, but the US Patent and Trademark Office declined, citing the moniker’s likelihood to disparage many people of Asian descent. The band’s leader, Simon Tam, sued on First Amendment grounds.
Tam won on appeal last year, when the Federal Circuit struck down part of a 1946 law that prohibits registering trademarks that may denigrate “persons, living or dead, institutions, beliefs, or national symbols.” But the US Supreme Court justices agreed on Thursday to hear a challenge from the government early next year.
The (US) government may not penalize private speech merely because it disapproves of the message it conveys.” Judge Kimberly Moore, US Court of Appeals
The case could carry weighty implications for an unrelated but more widely publicized trademark matter involving the controversially dubbed Washington Redskins football team, and provide clarity on broader issues if such cases.
When the government denies a request for a trademark it deems disparaging, does that constitute a penalty on private speech or a mere refusal to subsidize offensive messaging?
Judge Kimberly Moore, on the one hand, who penned the circuit court’s majority opinion to strike down the trademark disparagement measure, considered the denial a penalty based on viewpoint discrimination: “It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys.”
Judge Alan Lourie, on the other hand, who penned the dissenting opinion, said the ruling would “further the degradation of civil discourse” by undercutting the government’s authority “to filter out certain undesirable marks from the federal trademark registration system.”
President Obama’s administration has urged the Supreme Court to overturn the circuit ruling and reinstate a law that “simply reflects Congress’ judgment that the federal government should not affirmatively promote the use of racial slurs and other disparaging terms by granting the benefits of registration.”
The government argues that the band’s free speech has not been infringed since it is lawfully permitted to use the name without trademark protection.
In 2014, the trademark office moved to cancel six Redskins trademarks registered between 1967 and 1990, after five native Americans petitioned it to do so.
Public opinion among younger Americans has shifted toward favoring restrictions on offensive speech. A survey by Pew Research Center last year found that 40 percent of Millennials favor governmentimposed restrictions on commentary about minority groups, more than older generations.