Free The Slants to trademark band name
A hot Supreme Court case usually attracts a flurry of legal briefs and commentary. A case to be considered Wednesday has also inspired something unique: a song by a rock-and-roll band.
The Slants’ members are all Asian-American. Led by Simon Tam, the group has waged a First Amendment battle with the federal government. Why? Because the U.S. Patent and Trademark Office views its name as “disparaging ” toward Asian Americans, and federal law prohibits granting such trademarks.
The case gives the justices a chance to reiterate what they have correctly said many times: Under the First Amendment, it is not the government’s job to shield the public from speech that offends.
The word “slants” stereotypes Asians because of their eyes. But that was precisely why Tam wanted his band to be named The Slants: “We want to take on these stereotypes that people have about us, like the slanted eyes, and own them.”
The band is the latest example of “appropriation” — taking ownership, in a sense, of pejorative terms and turning them into badges of pride. A brief filed with the court by Dykes on Bikes asserts that it chose the name “to highlight and confront the controversial history of that term and dispel the notion that it is disparaging.”
Not everyone embraces that rationale. “While empowering to a young social justice rock band, that same (trademark) may be debilitating for those who re- member life in American internment camps during World War II,” wrote civil rights organizations led by the Fred T. Korematsu Center for Law and Equality.
The Slants and others argue that the trademark office has been wildly inconsistent in denying disparaging trademarks, making it impossible for applicants to predict whether their names will be protected. A brief filed by the owners of the Washington Redskins football team — which lost its trademark for the same reason used in denying The Slants’ — contains a jaw-dropping list of offensive and vulgar names that the government has approved.
How does the government respond? “Nothing in the First Amendment requires Congress to encourage the use of racial slurs in interstate commerce,” the government brief states, adding that The Slants can continue to use their name as long as they like without a trademark.
The Slants argue that because trademarks are so valuable, denying that protection has a chilling effect on their freedom of speech.
The Supreme Court usually rules in favor of First Amendment protection. So I am predicting — and hoping — that the justices, average age 69, give a favorable listen to the youthful words of The Slants: “Sorry if you take offense Silence will not make amends The system’s all wrong And it won’t be long Before the kids are singing our song.”