Supreme Court upholds offensive trademarks as form of free speech

Richard Wolf | USA TODAY

Show Caption Hide Caption Supreme Court decision could help NFL team get trademark The Supreme Court Rejection of a Law could help Washington Redskins.

WASHINGTON — The Supreme Court ruled Monday that even trademarks considered to be derogatory deserve First Amendment protection.

The decision was a victory for an Asian-American dance rock band dubbed The Slants — and, in all likelihood, for the Washington Redskins, whose trademarks were cancelled in 2014 following complaints from Native Americans.

While defending the First Amendment's freedom of speech protection, the justices did not remove all discretion from the U.S. Patent and Trademark Office. But they raised the bar for trademark denials so that names deemed to be offensive can survive.

"It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend," Justice Samuel Alito wrote for a unanimous court. He rejected the government's argument that protected trademarks become a form of government, rather than private, speech.

"If the federal registration of a trademark makes the mark government speech, the federal government is babbling prodigiously and incoherently," Alito said. "It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public."

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The nation's capital has been captivated for years with the battle over the Redskins' name, but the high court had left the football team's case pending at a federal appeals court in order to hear the challenge brought by band leader Simon Tam and his Portland, Oregon-based foursome.

In a statement following the ruling, Tam said it vindicated First Amendment rights for "all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination."

In an interview with USA TODAY in January, Tam, 36, said freedom of expression is particularly needed "with those you disagree with the most." He added: "Satire, humor, wit and irony — those are the things that will truly neuter malice."

Lisa Blatt, the lawyer representing Washington's football team, said the decision “resolves the Redskins’ long-standing dispute with the government."

"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,” Blatt said.

The Slants went to court after being denied trademark registration for a name they chose as an act of "reappropriation" — adopting a term used by others to disparage Asian Americans and wearing it as a badge of pride.

After losing in a lower court, the band won at the U.S. Court of Appeals for the Federal Circuit, which ruled 9-3 last year that "the First Amendment protects even hurtful speech." The Obama administration then appealed to the Supreme Court.

During oral argument in January, several justices said provocative names are chosen by individuals and organizations to express their views or as advertising. Denying trademark registration, they said, was a form of viewpoint discrimination.

But some justices also wondered whether the government should retain wiggle room, particularly since even without being registered, groups such as The Slants can advertise and sign contracts.

The Supreme Court has upheld negative speech in recent years, even when it involved distasteful protests at military funerals or disgusting "animal crush" videos. But last year, it allowed Texas to ban specialty license plates featuring the Confederate flag because it was considered a form of government speech.

The Slants won support during their court fight from both liberal and conservative groups, ranging from the American Civil Liberties Union to the U.S. Chamber of Commerce.