Listen For 'Disparaging,' Scandalous,' And 'Amoral' In Upcoming SCOTUS Case

Next week the Supreme Court will hear arguments for Lee v. Tam, which is a First Amendment case against the U.S. Patent and Trademark office, brought by the rock band The Slants.

MICHEL MARTIN, HOST:

Now it's time for our regular segment Words You'll Hear. That's where we try to understand a story that will be in the news in the coming days by drilling down on some of the key words. Today, the words are disparaging, scandalous and amoral. And while we're tempted to bring up certain reality show stars, we won't because we're talking about a Supreme Court case Lee v. Tam. This case has been winding its way through the courts for almost seven years at this point.

The justices will hear the case next week. It's a case brought by a Portland rock band that asked some difficult questions about free speech in the commercial arena. Here to tell us more is Megan Carpenter. She's a professor at Texas A&M University School of Law where she is co-director of the Center for Law and intellectual property, and she was kind enough to join us here in our studios in Washington, D.C. Professor Carpenter, thank you so much for coming.

MEGAN CARPENTER: You're welcome. It's a pleasure to be here.

MARTIN: So just give us the basic facts of the case, if you would.

CARPENTER: Simon Tam applied to register the trademark The Slants for his rock band with the U.S. Patent and Trademark Office. The registration was denied on the basis that the term slants is disparaging to people of Asian-American descent. He very deliberately chose the name The Slants for his band, and the band is very active in social justice issues. They're interested really in re-appropriating the term.

MARTIN: Well, in the same way that, for example, some rap stars use the N-word, and they say that they're re-appropriating it. And I should have mentioned at the outset that there is language in our conversation that will be offensive to some people. So for those who just heard us refer to the name of the rock band and are disturbed by it, I do want to say it is fundamental to understanding this story. So, you know, with that being said, where do these fun words come in - disparaging, scandalous and amoral?

CARPENTER: The Disparagement Provision is what's at issue in this particular Supreme Court case because The Slants was determined by the Trademark Office to be disparaging of Asian-Americans or people of Asian-American descent. Then it was unable - Simon Tam was unable to register it.

MARTIN: What is the specific question that the court will be asked to answer here?

CARPENTER: The court wants to figure out whether or not it's constitutional for the disparagement bar to be in place, whether or not that prevents freedom of speech and free expression.

MARTIN: Now, I think people hearing this case particularly people in the Washington area or who follow football will certainly see some similarities connected to the case of the Washington football team, which has a name which many Native American activists have deemed to be disparaging. Is the case of the Washington football team referenced somehow in this case?

CARPENTER: They are connected in so far as if the Supreme Court decides that it's unconstitutional to prohibit trademark registration for marks that are disparaging, then that would apply both to the Washington football team and to the band The Slants.

MARTIN: Does the fact that Simon Tam is a member of the referenced group have any weight here, particularly given that they deliberately chose the name in order to, I assume in part, call attention to the ways in which Asian-Americans have been disparaged?

CARPENTER: That's a really interesting point and has been of some debate. When we apply trademark law, we really consider not really the intent of the trademark owner, but we consider what consumers think. So with disparagement, we really are looking at not necessarily what the intent is of Simon or of the Washington football team, but how that's perceived. But there can even be many different opinions depending upon who you ask.

MARTIN: That's Megan Carpenter. She's a professor at Texas A&M University School of Law where she is co-director of the Center for Law and Intellectual Property, but she was kind enough to join us in our studios in Washington, D.C. Professor Carpenter, thank you so much for joining us.

CARPENTER: You're welcome. Thank you for having me.

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