Redskins get judicial boost
Rejecting trademarks that “disparage” others violates the First Amendment.
washington» The Supreme Court ruled Monday that a law that prohibits the government from registering trademarks that “disparage” others violates the First Amendment, a decision that could impact the Washington Redskins’ efforts to hang on to their controversial name.
Justice Samuel Alito delivered the opinion for a largely united court. He said the law could not be saved just because it evenhandedly prohibits disparagement of all groups.
“That is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint,” Alito wrote.
He added that the disparagement clause in the law “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
All of the participating justices — Neil Gorsuch was not on the court when the case was argued — joined that part of Alito’s opinion. Four justices peeled off from parts of the opinion where they say Alito opined on more than what was needed to decide the case.
The trademark office in 2011 said registering the trademark of the Slants, an Asian American rock group, would violate a part of the 1946 Lanham Trademark Act that prohibits registration of a trademark that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The office said the name was likely to disparage a significant number of AsianAmericans. But founder Simon Tam said the point of the band’s name is just the opposite: an attempt to reclaim a slur and use it as “a badge of pride.”
In a Facebook post after the decision, Tam wrote:
“After an excruciating legal battle that has spanned nearly eight years, we’re beyond humbled and thrilled to have won this case at the Supreme Court. This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves.”
Tam lost in the first legal rounds. But then a majority of the U.S. Court of Appeals for the Federal Circuit said the law violates the First Amendment’s guarantee of free speech. The government may not “penalize private speech merely because it disapproves of the message it conveys,” a majority of that court found.