The Supreme Court declared on Monday that it is unconstitutional for the federal government to refuse to register trademarks that can be considered offensive, according to Politico. The decision could destroy legal challenges to other controversial trademarks, such as the Washington Redskins football team.
The court ruled in favor of “The Slants” front man Simon Tam, who was rejected by the U.S. Patent and Trademark Office when he wanted to trademark the band’s name, citing a law that denied trademarks that disparage individuals, institutions, beliefs or national symbols.
The Slants’ frontman Simon Tam and his three Portland, Oregon-based bandmates are Asian-Americans who say they chose the name to re-appropriate the racial slur, and strip it of its hateful meaning.
After an excruciating legal battle that has spanned nearly eight years, we’re beyond humbled and thrilled to have… https://t.co/O5ZNUfAy7Q
— The Slants (@theslants) June 19, 2017
Tam’s case pits supporters on one side who argue they are fighting for free speech rights, and opponents who warn a Slants victory will require government approval of all kinds of hateful racial slurs, including the N-word.
When the government grants a trademark to a business owner, the owner gains the exclusive legal right to use the name on products and merchandise such as T-shirts. But some say the government approval of trademarks confers more than a commercial benefit and suggests tacit government approval of the slurs.
During oral argument before the Supreme Court on January 18, the justices hammered both sides with questions.
Justice Elena Kagan asked whether the First Amendment rule that prohibits the government from discriminating against disfavored views applies to the trademark’s ban on “bad” trademarks.
“The point is that I can say good things about something, but I can’t say bad things about something” in a trademark, she said. “And I would have thought that that was a fairly classic case of viewpoint discrimination.”
Justice Anthony Kennedy expressed skepticism at the government’s argument that trademarks are commercial speech that do not express ideas.
“We have a culture in which we have T-shirts and logos and rock bands and so forth that are expressing a point of view,” Kennedy said. “They are using the market to express views.”
Following the ruling, the ACLU (American Civil Liberties Union) released a statement saying: “This is a major victory for the First Amendment, and establishes that the government cannot selectively grant trademarks based on its approval or disapproval of a speaker’s viewpoint.
“The Slants chose their name to reappropriate a racial slur used against their community, with the goal of deflating the word’s hurtful power. The government’s misguided effort to protect minorities from disparagement instead hurt members of that very community by hindering their right to compete in the marketplace of ideas. Fortunately, today’s opinion prevents the kind of absurd outcome that results when the government plays speech police.”
Among those who opposed the Slants in the Supreme Court is the group of Native American who won cancellation of the Redskins football team trademark in a 2014 4th Circuit Court of Appeals ruling, on the grounds that the name is disparaging of Native Americans.
The Redskins case was on hold pending the Supreme Court decision in the Slants case.