A win for free speech

Record Observer - - Opinion -

Mem­bers of the Asian-Amer­i­can rock band The Slants have the right to call them­selves what­ever name they want the Supreme Court ruled Mon­day in a case 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.”

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, ac­cord­ing to Na­tional Public Ra­dio. “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,” Row­land said.

The Supreme Court de­ci­sion could open the way for oth­ers de­nied reg­is­tra­tion by the trade­mark of­fice, note­ably the Wash­ing­ton Red­skins, which lost its trade­mark in 2014.

Al­ito also 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.”

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