The Supreme Court has ruled 8-0 that it is unconstitutional for the U.S. Patent and Trademark Office to not register offensive names under the federal trademark law’s disparagement clause.

The Asian-American band The Slants did not receive a trademark due to this clause, which the justices found violated free speech. From CNN:

“Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way,” Justice Samuel Alito wrote in the majority opinion. “The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates,” Alito added. “If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”

This is what 15 U.S. Code § 1052 states:

(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 3501(9) of title 19) enters into force with respect to the United States.

The Slants founder Simon Tam wants to use the band’s name “to reclaim a derisive slur and transform it into a badge of ethnic pride.” The trademark office said it could not provide the registration even when the name is “used in a positive light.”

From Fox News:

Alito cautioned in his opinion that the government still “has an interest in preventing speech expressing ideas that offend.” But he suggested the clause in question was too sweeping: “The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: ‘Down with racists,’ ‘Down with sexists,’ ‘Down with homophobes.’ It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.”

Cato senior fellow Ilya Shapiro reacted to the ruling in this press statement via email:

In a unanimous ruling that splintered on the rationale, the Supreme Court correctly held that the “disparagement clause” of the Lanham Act (the federal trademark law) violated the Constitution. The ruling boils down to the simple point that bureaucrats shouldn’t be deciding what’s “disparaging.” Trademarks, even ones that may offend many people—of which plenty are registered by the Patent and Trademark Office—are private speech, which the First Amendment prevents the government from censoring. As Justice Alito put it in a part of the opinion that all the justices joined, “If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.” The Slants’ case shows that the disparagement clause places an unconstitutional condition on those who consider the use of an edgy or taboo phrase to be part of their brand: either change your name or be denied the right to use it effectively. Whether you’re a musician, a politician, or a sports team—the Washington Redskins’ moniker will now be safe—it’s civil society (consumers, voters, fans) who should decide whether you’re being too offensive for polite company.

Last January, the justices expressed these opinions during oral arguments. From USA Today:

It didn’t take long for several justices to pounce on the government’s contention that it can pick and choose between positive and negative trademarks. “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,” Justice Anthony Kennedy said. “They are using the market to express views.” “It’s a form of advertising,” Justice Stephen Breyer said. Justice Elena Kagan said the government cannot make distinctions based on viewpoint — even if it seeks to allow positive messages and deny negative ones. “Even government programs are subject to this constraint, which is that you can’t distinguish based on the viewpoint of a speaker,” she said. — In the band’s case, Justice Ruth Bader Ginsburg said, “Everyone knows that The Slants is using this term not at all to disparage, but simply to describe. It takes the sting out of the word.”

Washington Redskins

As Shapiro noted, this could affect NFL team the Washington Redskins, who remain in a court case “over whether the team name violates the provision of law struck down by the court Monday.” People and outside groups have pressured the team to change the name because they consider it “a slur toward Native Americans.” From CNN:

“The case also has obvious implications for the similar dispute involving the Washington Redskins, who had their trademark canceled under the same statute and theory that the justices invalidated today,” said Steve Vladeck, CNN legal analyst and professor at the University of Texas School of law. “It should now follow that their trademark also should not have been invalidated.”

The Redskins attorney Lisa Blatt applauded the court’s decision:

“The Team is thrilled with today’s unanimous decision as it resolves the Redskins’ long-standing dispute with the government,” she told CNN in a statement. “The Supreme Court vindicated the Team’s position that the First Amendment blocks the government from denying or canceling a trademark registration based on the government’s opinion.”

Regulating Hate Speech

This ruling also brings into question speech issues, especially those that continue to plague public universities across the country. As Mike LaChance blogged, Congress will finally hold a hearing about the war on free speech on campuses. Wisconsin Republican lawmakers introduced legislation last month called the “Campus Free Speech Act” to counter the attacks on free speech.

Universities have tried to quell disruption by implementing “safe spaces” on campus. No, if your university if a public university, then the entire campus is a safe space. The University of Missouri had this problem back in 2015 after protests led to massive protests on campus. Then video emerged of Professor Melissa Click trying to stop a reporter from covering the event, even chanting that reporters have to go.

Many demanded that the university fire Click for her trampling on the First Amendment, but some actually defended her. The board of curators voted 4 to 2 to fire her.

Old Dominion University in Virginia even has a safe space committee. Forbes described the safe space at Grand Valley State University:

Officials at Grand Valley State University (GVSU) in Michigan have imposed a speech zone policy. Under university rules, students have full expressive rights, but only inside two very small areas on campus amounting to about .02 percent of its total area. Moreover, students must first obtain permission from officials before they engage in any speech or expressive activity within the zone.

Look at what has happened at Evergreen State College in Washington, which has gone into madness after a professor politely rejected to a day that asked white people to leave campus. 50 professors have even demanded that the public college punish Professor Bret Weinstein for his actions. Washington State lawmakers have now pondered to make the college private.

MATAL, INTERIM DIRECTOR, UNITED STATES PATENT AND TRADEMARK OFFICE v. TAM by Legal Insurrection on Scribd



