The Mercury News

Justices to hear free speech clash

- By Sam Hananel

WASHINGTON — The Slants aren’t exactly a household name when it comes to music, but the Asian-American rock band has certainly made its mark in the legal world.

The Oregon-based group has spent years locked in a First Amendment battle with the government, which refuses to register a trademark for the band’s name because it’s considered offensive to Asians.

That fight will play out Wednesday in the nation’s highest court as the justices consider whether a law barring disparagin­g trademarks violates the band’s free speech rights.

The case has drawn attention because it could affect the Washington Redskins in a similar fight to keep the football team’s lucrative trademark protection. The government canceled the team’s trademarks last year after finding they are disparagin­g to Native Americans.

For Slants founder Simon Tam, the name was chosen not to offend, but to take on stereotype­s about Asian culture. He says the band is reclaiming a term once used as an insult and transformi­ng it into a statement of cultural pride.

But the U.S. Patent and Trademark Office didn’t see it that way. It refused to register the name in 2011, saying a trademark can be disparagin­g even if it’s meant to be used in a positive light.

A divided federal appeals court handed the band a victory four years later, ruling that the law prohibitin­g offensive trademarks is unconstitu­tional.

“Whatever our personal feelings about the mark at issue here, or other disparagin­g marks, the First Amendment forbids government regulators to deny registrati­on because they find the speech likely to offend others,” Judge Kimberly Moore said for the majority.

The Obama administra­tion has urged the Supreme Court to overturn that ruling. In legal briefs, the Justice Department argues that the law does not restrict speech, but declines to associate the federal government with “racial epithets, religious insults and profanity as trademarks.”

If the decision is upheld, the government warns it will be forced “to register, publish and transmit to foreign countries marks containing crude references to women based on parts of their anatomy; the most repellent racial slurs and white supremacis­t slogans; and demeaning illustrati­ons of the prophet Mohammed and other religious figures.”

Yet the trademark office has approved plenty of questionab­le trademarks. Some of those include the Afro Saxons and Dago Swagg clothing and Baked By A Negro bakery products.

 ?? ALEX BRANDON/ASSOCIATED PRESS ARCHIVE ?? The Washington Redskins logo is seen on the field in Landover, Md. The Supreme Court will consider if the law barring disparagin­g trademarks violates free speech rights.
ALEX BRANDON/ASSOCIATED PRESS ARCHIVE The Washington Redskins logo is seen on the field in Landover, Md. The Supreme Court will consider if the law barring disparagin­g trademarks violates free speech rights.

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