USA TODAY International Edition
What’s in a name? A First Amendment right
When Simon Tam founded his rock band and named it The Slants, the Asian- American musician was trying to “re- appropriate” an ethnic slur and turn it into something positive.
Many people may find the name offensive, and they have plenty of options. They can vote with their feet and deny The Slants an audience. Or launch a boycott. Or go to appearances and protest. That’s the beauty of the First Amendment’s guarantee of freedom of speech. The antidote to speech you find offensive is more speech.
But what the federal government did in 2011, when it found the band’s name “disparaging,” is offensive to this constitutional guarantee. The U. S. Patent and Trademark Office denied Tam trademark protection, citing a law that bars the government from approving trademarks that “may disparage ... persons, living or dead, institutions, beliefs or national symbols.”
A trademark is a valuable commodity, giving the holder the exclusive right to use the name and legal power to sue others who infringe on that right. So Tam challenged the decision. And this month, after a long trip through the lower courts, the case landed at the Supreme Court, which will likely decide the case this spring.
No matter what the Patent and Trademark Office thinks of the name, government bureaucrats shouldn’t be in the business of deciding what is and isn’t disparaging to some group, or of protecting certain groups from getting their feelings hurt.
Popular, inoffensive speech seldom needs protection. The beauty of the First Amendment in a free society is that it protects unpopular or offensive speech, particularly from government regulation. The Supreme Court has said as much many times over many years.
At the recent oral arguments, the government maintained that a trademark denial does not restrict free speech. The Slants can still use the name. It merely places “a reasonable limit on access to a government program,” Deputy Solicitor General Malcolm Stewart said.
Several justices didn’t buy that defense. Justice Ruth Bader Ginsburg questioned the law’s vagueness and inconsistent application, pointing out that the patent office had both approved and rejected trademarks for the term “hebe.” Other trademarks, surely offensive to some, have been approved, including Yellowman, Retardipe-dia and Crippled Old Biker Bastards. It’s all too arbitrary to pass constitutional muster.
The court’s decision will affect other trademarks, some far more controversial. In 2015, a federal trial judge in Washington upheld the patent office’s cancellation of the trademark of the Washington Redskins football team. An appeal is pending.
Native Americans and many others find the team’s name deplorable, including Tam and The Slants, whose website says “redskin” represents “a long history of oppression.” They can loudly protest, just as others can celebrate the name — all without government interference.
And that’s just the point. When the government denies a valuable benefit based on its arbitrary determination of offensiveness, everyone loses a cherished constitutional guarantee.