Recently, the Supreme Court of the United States (SCOTUS) handed down rulings on several cases they had accepted for review. With respect to the First Amendment, the Court’s decision in the case Matal v. Tam will be remembered as a victory for free speech advocates for many years to come.
The court voted unanimously; however, the justices disagreed on the reasons for their ruling. Justice Gorsuch took no part in the proceedings.
Naming A Rock Band
Unlike many of SCOTUS’s recent cases, the facts of Tam are fairly straightforward and easy to follow. As stated at the very beginning of the Court’s opinion, “This case concerns a dance-rock band’s application for federal trademark registration of the band’s name, ‘The Slants.'”
Given today’s political climate and customary controversies, some may presume that this band is some sort of white nationalist group. You may be thinking the band sought to denigrate Asian-Americans by condescendingly appropriating the slur “slant” as their name.
On the contrary: the band is comprised of Simon Shiao Tam and several of his Asian American companions. Tam and his fellow artists deliberately decided to name their band using this traditional slur as an act of re-appropriation.
As the Court writes, “‘Slants’ is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to ‘reclaim’ the term and drain its denigrating force.”
Troubles With Trademark Law
Sounds like a commendable act of advocacy, right? Well, that’s not how the United States Patent and Trademark Office (PTO) interpreted Tam’s request to trademark the band’s name.
In fact, the PTO twice denied Tam’s request, one of which was on appeal, based on an old legislative provision from the Lanham Act, 15 U. S. C. §1052(a). This Lanham Act provision disallows the granting of trademarks that could “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.”
Tam had commendable intent to “drain” the “denigrating force” out of a traditionally derogatory word. However, the TPO said that Tam and his band needed to rebrand since the word could still be found offensive.
Needless to say, Tam took his case to federal court. Joseph Matal, the Interim Director of the PTO, and his legal team defended the Lanham Act provision.
As is evident in the audio and transcripts from the case’s January 18th oral arguments, Matal’s lawyers put forth multiple justifications for prohibiting Tam’s desired trademark. Primarily, these lawyers sought to frame the Lanham Act provision as “a reasonable limit on access to a government program.”
However, Chief Justice Roberts observed that main argument turned out to be quite “circular.” He added the following:
“The claim is that you’re not registering on my mark because it’s disparaging, and your answer is, well, we run a program that doesn’t include disparaging trademarks, so that’s why you’re excluded.
It — it doesn’t seem to me to advance the argument very much.”
At another point during oral arguments, Justice Kagan equated Matal’s legal argument to “a fairly classic case of viewpoint discrimination.” Such discrimination would be impermissible given the circumstances. Justices Kagan, Ginsburg, and Sotomayor actually joined a separate opinion by Justice Kennedy that argued just that point.
In the end, as stated above, the Court unanimously sided with Tam, affirming that “the disparagement clause [is] facially unconstitutional under the First Amendment’s Free Speech Clause.”
Tam’s legal victory can best be explained in what Justice Alito wrote:
[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”