January 19 2017
Patrice L. Onwuka
Does an Asian-American band deserve the government’s blessing to call itself a racial slur?
That’s the big trademark question that the Supreme Court is tackling this week in an amusing and momentous case involving a rock band and the Patent and Trademark Office (PTO). The PTO rejected the Slants’s trademark application under a section of federal law that prohibits the registration of trademarks that disparage or paint with contempt or disrepute peoples, organizations, beliefs, or national symbols.
The Slants took their name from a derogatory term referring to Asians, but the band says it wants to reclaim the term and turn it into something positive. However, they need the trademark to do business as NPR reports:
"If you want a record label deal, they won't sign you unless you have a registered trademark," Tam says.
The band points to lots of other registered names that are viewed by some as offensive — like N.W.A, the name of a hip-hop group that stands for "Niggaz Wit Attitudes."
So the Slants went to court, contending that the denial of trademark registration violated their free-speech rights.
The band is joined by powerful allies on the right including the Cato Institute and the U.S. Chamber of Commerce who say this is a free-speech issue point blank:
The government "doesn't get to decide what's a slur," says Ilya Shapiro of the Cato Institute, who filed a brief in the Supreme Court siding with The Slants. "It shouldn't be the government that makes that call."
"There are a lot of registered trademarks which no one would expect the government to have endorsed, such as "Take Yo Panties Off" or "Capitalism Sucks Donkey Balls." And these are some of the tamer ones," he says with a wry smile.
The government holds that the Slants can call themselves whatever they want, but to get trademark protection, they need to go back to the drawing board because the law forbids disparagement.
The justices struggled with whether denying trademarks that disparage people or beliefs violates free speech rights. Those who generally agree philosophically were split:
Justice Elena Kagan said the 1st Amendment has been understood to mean “you can’t discriminate based on a viewpoint.” The trademark office was saying it would register trademarks for people who say “good things” about Asian Americans, but “not bad things,” she said.
But Justice Sonia Sotomayor said the government was not restricting anyone’s freedom of speech. “No one’s stopping your clients from calling themselves ‘the Slants’ [or] from advertising themselves that way,” she said. “You are asking the government to endorse your name.”
This case will be watched closely for the implications on trademarks for names in other fields such as sports. Anyone who lives in Washington D.C. is probably familiar with the Redskins football team. Woeful sports record aside, this team has fallen out of favor because its owners refuse to change the team’s name to something that the PTO thinks isn’t demeaning to Native Americans. The PTO cancelled their trademark in 2014 as well.
The Slants are bending backwards to disassociate themselves from the Redskins, denying that the NFL team is bankrolling their lawsuit. However, they have become of face for artists and even extreme groups whose names challenge public opinion, but argue they deserve the right to self-identify however they want.
The lead singer is right about one thing:
"We need to allow freedom of expression, especially with those you disagree with the most," the 35-year-old musician-activist says over a bowl of gumbo in the nation's capital. "Satire, humor, wit and irony — those are the things that will truly neuter malice."
The Court has held in recent years that the First Amendment protects even hurtful speech. We’ll find out whether the Court continues to maintain that position.