It’s Supreme Court Saturday! Yes, we’re running on Saturday now, to free up Sunday for encouraging faith-based content. So, start writing some great articles, friends, because I’m bummed about losing my strong alliteration! I know y’all want to hear more about trademarks, right? This week we have a free speech issue masquerading as a trademark case, and it’s the most contemporary case we’ve handled thus far; the decision was issued in December of 2015.
Simon Tam was the Asian-American lead singer of a band called The Slants. All the members of The Slants were Asian-American, and the band had intentionally chosen a pejorative term referencing Asian-Americans in order to reclaim the term, similarly to how previous pride movements have reclaimed terms like slut and queer.
Tam applied to have the trademark registered with the Patent and Trademark Office, and his application was rejected. The Patent and Trademark Office found the term “slants” to be derisive and therefore prohibited under the Lanham Act, which largely codifies U.S. patent and trademark law. The Lanham Act prohibits any derisive or scandalous trademarks to be registered with the Patent and Trademark Office, using the logic that the government registering an offensive trademark is tantamount to the government approving of or even subsidizing that offensive term or language.
Using such unimpeachable sources as Urban Dictionary (yes, your government cited the website you use to learn that “loud” means “dope *** weed” in a real court case in front of a real judge), the government determined that “slants” was offensive and therefore could not be registered.
Tam and his band appealed the decision claiming that they felt that their use of the term was acceptable, as members of the ethnic group targeted by the slur, and further, that the government didn’t have the right to cherry-pick which trademarks it registers, since the Patent and Trademark Office is supposed to be viewpoint neutral (meaning that, for example, a trademark on “Manicurists for Peace” should be as easy to obtain as “Manicurists for War”).
The Court sided with Tam, rightly noting that if trademarks become government speech simply by being registered, that opens the door for a wave of censorship. Since the government is not required to be viewpoint-neutral in its own expression, content which does not meet the government’s agenda could be excluded from the protections of a registered patent under the Patent and Trademark Office’s reasoning.
The Court also made the common-sense observation that the Patent and Trademark Office is neither creating nor maintaining these Trademarks, simply noting their existence as they are presented.
Immediately after the Court announced its decision in this case, there was a flood of applications to trademark racial, ethnic, and religious slurs. Though one must intend to use the term in some way, the bar for use is not very high. Many of these applicants, no doubt, wished to reclaim their chosen term like Tam did. Others, perhaps, simply wanted to protect the term from use by bigots. But I would imagine that among those applicants were several people who wished to use the term in a pejorative manner, which is unsettling.
On some level, I appreciate the intentions the Lanham Act was trying to accomplish, insofar as the government was trying to thread the needle by allowing speech to occur without restriction but not endorsing speech which has no place in civil society. Tam himself was the perfect Plaintiff to illustrate how the government may not be equipped to decide when language is edgy and when it is uncivil.
I’d love to hear how you think the government should balance the use of its obligations to allow free speech and to not issue or endorse hate speech. I’m always interested in how the government chooses to issue grant money to avant-garde artists or display political art in publicly funded museums. Do you think that is government speech? As always, see you in the comments!