A rul­ing that’s sure to of­fend

Supreme Court strikes down a law against ‘dis­parag­ing’ trade­marks, cit­ing 1st Amend­ment pro­tec­tions.

Los Angeles Times - - OPINION -

In a re­as­sur­ingly sweep­ing de­ci­sion, the Supreme Court on Mon­day struck down a fed­eral law pro­hibit­ing the regis­tra­tion of trade­marks that may dis­par­age in­di­vid­u­als, in­sti­tu­tions, be­liefs or na­tional sym­bols, or “bring them into con­tempt or dis­re­pute.”

The 8-0 rul­ing was a vic­tory for the Slants, an Asian Amer­i­can dance-rock band that chose its name as a way to re­deem a word tra­di­tion­ally re­garded as a racial slur, only to be blocked from trade­mark­ing its brand by the U.S. Patent and Trade­mark Of­fice. Congress barred the regis­tra­tion of dis­parag­ing trade­marks in 1946, pre­sum­ably to avoid giv­ing the govern­ment’s im­pri­matur to of­fen­sive slo­gans.

Writ­ing for the court, Jus­tice Sa­muel A. Al­ito Jr. wrote that the “dis­par­age­ment clause” in trade­mark law “of­fends a bedrock 1st Amend­ment prin­ci­ple: Speech may not be banned on the ground that it ex­presses ideas that of­fend.”

Al­ito’s opin­ion rightly makes clear that the 1st Amend­ment is vi­o­lated not only when the govern­ment pre­vents or pun­ishes speech, but when it con­di­tions ben­e­fits — such as the eco­nomic ad­van­tages that flow from fed­eral trade­mark regis­tra­tion — on the con­tent of speech. We don’t want the govern­ment de­cid­ing what brands and slo­gans are too of­fen­sive to be trade­marked any more than we want the govern­ment de­cid­ing which shows are too dis­re­spect­ful to be tele­vised or which po­lit­i­cal trea­tises are too rad­i­cal to be pub­lished.

Equally im­por­tant, Al­ito dis­missed the ar­gu­ment that trade­marks amount to “govern­ment speech” — that is, pro­nounce­ments that the govern­ment it­self makes (such as a pres­i­den­tial ad­dress) with­out hav­ing to re­main neu­tral. “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.”

With this rul­ing the court re­gains its bear­ings two years af­ter an ill-con­ceived de­ci­sion in which it de­fined govern­ment speech in absurdly broad terms. In that case, it ruled 5 to 4 that the state of Texas was “speak­ing” when it is­sued spe­cialty li­cense plates on which mo­torists dis­played a dizzy­ing ar­ray of per­sonal and or­ga­ni­za­tional mes­sages of their choice. There­fore, the ma­jor­ity ruled, the state could refuse to is­sue a plate for the Sons of Con­fed­er­ate Vet­er­ans that in­cor­po­rated the Con­fed­er­ate bat­tle flag. (Al­ito dis­sented in that case.)

This doesn’t mean the govern­ment is com­pelled to en­gage in of­fen­sive speech it­self. A state can (and should) refuse to fly the Con­fed­er­ate flag at its Capi­tol, a de­ci­sion South Carolina made in 2015 af­ter a racist mass mur­der at a Charleston church. Mean­while, ac­tivists and sports fans are free to lobby the own­ers of the Red­skins to change the team’s name, as we hope they will. But when the govern­ment at­tempts to cen­sor or pun­ish the “dis­parag­ing” speech of pri­vate in­di­vid­u­als or groups, the 1st Amend­ment stands in the way. That was the re­sound­ing mes­sage of Mon­day’s de­ci­sion, and it will echo be­yond the con­fines of a Slants con­cert.

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