The Atlanta Journal-Constitution
Law on disparaging trademarks gets Supreme Court review
Dance-rock band, NFL football team await decision.
WASHINGTON — The Supreme Court on Thursday agreed to decide whether a federal law that denies protection to disparaging trademarks can survive First Amendment scrutiny. The case, concerning an Asian-American dancerock band called the Slants, will most likely also effectively resolve a separate one concerning the Washington Redskins football team.
The trademark case was one of eight the justices chose from among the many hundreds of petitions seeking review that had piled up over the summer.
The trademark disputes started when the Patent and Trademark Office denied protection to both the band and the team under part of a federal law, the Lanham Act, that bars federal registration of trademarks that disparage, among others, “institutions, beliefs or national symbols.”
Last year, in the Slants case, a federal appeals court in Washington found the Lanham Act’s disparagement provision unconstitutional. Writing for the majority in a 9-3 decision, Judge Kimberly A. Moore of the U.S. Court of Appeals for the Federal Circuit said that while some of the rejected trademarks “convey hurtful speech that harms members of oft-stigmatized communities,” the First Amendment “protects even hurtful speech.”
Recent Supreme Court decisions have been quite protective of offensive speech, including hateful protests at military funerals, depictions of animal cruelty and lies about military honors. The government, in its petition asking the Supreme Court to hear the Slants case said the trademark law did not bar any speech and that the Slants were free to continue to use their name. All the law does, the brief said, is offer “federal benefits on terms that encourage private activity” in line with legislative policy.
In an unusual move, the band agreed that the justices should hear the government’s appeal, given the importance of the issues it presents. The band added that it should win on its First Amendment argument and two others: that the law is unconstitutionally vague and that “the Slants” is not disparaging.
The agency’s decisions are so inconsistent, the band’s brief said, that it “might as well be tossing a coin.” It has, for instance, rejected trademarks for “Heeb,” “Dago,” “Injun” and “Squaw,” saying they were disparaging. In other cases it has registered trademarks for those same terms.
In any event, the band said, it did not mean to disparage anyone. Its goal, it said, is to adopt and reform a disparaging term about Asians, much as some gay people have embraced the term “queer.”
The Redskins also maintain that they mean no offense. The team appealed to the 4th U.S. Circuit Court of Appeals, also in Virginia. The appeal is scheduled to be argued in December. In an unusual move, the team asked the Supreme Court to hear its case along with the Slants case, even though the 4th Circuit has not yet ruled. The court took no action on the Redskins’ petition.