Court hears Slants loud and clear
Trademark office can’t nix band name as ‘offensive’
“Ilike San Francisco, but if I see one more pair of slanty eyes around here, I’ll lose it.” I heard someone say these words in jest at a dinner party not long after I moved to the Bay Area. Apparently, the speaker failed to discern my Asian ancestry, or perhaps my almond-shaped eyes did not bother her because the rest of me “looked” non-Asian. As happens all too often when people use racial slurs in so-called polite company, no one said anything. I was too offended to summon up the right rejoinder; being a “slant” in that setting, I felt unwelcome and even unsafe.
This week, an Asian American band named the Slants won a unanimous ruling from the U.S. Supreme Court in its free-speech challenge to the U.S. Patent and Trademark Office’s refusal to register the name as a valid trademark. The court noted that even though the government has the power to register trademarks, the underlying expression of the trademark is private speech, not government speech.
The trademark office’s rejection of the name the Slants was based on a clause of the federal Lanham Act that prohibits the registration of trademarks that may “disparage ... or bring ... into contempt or disrepute” any “persons, living or dead.” With more than 2 million marks with active federal certificates of registration (including the Dead Kennedys, Dykes on Bikes and N.W.A.), the trademark office decided that the Slants was impermissibly disparaging.
In response, musician Simon Tam argued that the Slants” as “the only all Asian American dance-rock band,” had reclaimed the word “slants” to drain it of its hateful power and to negate its derogatory influence. He observed: “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.”
Tam argued further that the Lanham Act clause violated the First Amendment by giving the trademark office the power to engage in viewpoint discrimination by deciding which trademarks conveyed disparagement, contempt or disrepute.
The court ruled that the disparagement clause of the federal law governing trademark registration is unconstitutional because it allows the government to be the judge of what private speech is offensive: “Speech may not be banned on the ground that it expresses ideas that offend.” The court made the distinction between speech on behalf of the government (for example, the government could and should have the right to decide its own message on U.S. currency), and speech by private entities that is registered by the government (e.g., “Just Do It” and the Nike swoosh).
The government cannot engage in viewpoint censorship.
As a result of the court’s decision, there will certainly be more trademarks that cause offense to the public. The oftdebated Washington Redskins and the Cleveland Indians (with its “Screaming Indian” and tomahawk logos) are the most prominent examples. One can imagine that the application of the feminist band the Thunderpussies could be followed by an application by — the Pussy-Grabbers?
In a famous Supreme Court free speech decision in 1971, the court upheld the right of a Vietnam War protester to walk in a courtroom hallway wearing a jacket stating “F— the Draft.” Justice John Marshall Harlan II wrote: “One man’s vulgarity is another’s lyric.” Harlan’s words remind us that the best way to resist the slurs and vulgarity of others is not through government censorship, but through speaking up like Simon Tam and “The Slants” and reclaiming the power of language for ourselves.