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Supreme Court Rules Trademark Ban on Offensive Speech is Unconstitutional

Supreme Court Rules Trademark Ban on Offensive Speech is Unconstitutional

Supreme Court rules in favor of The Slants in trademark dispute

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.



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8-0? How did that happen?

Was Obama involved with this?

    Milhouse in reply to RedEchos. | June 19, 2017 at 5:38 pm

    Not at all surprising, and 0bama was involved only in the sense that it was his administration, and he could have ordered the PTO to grant the trademark. He didn’t tell the PTO to adopt this unconstitutional policy — that was done long before he even thought of becoming president — but he was happy with it and sought to extend it to cases like the Redskins.

Slant Lives Matter.

The former members of NWA are relieved also.

This is not the enthusiastic endorsement of the Bill of Rights which we should all demand of an American court. Consider these mealy-mouthisms—

Alito cautioned in his opinion that the government still “has an interest in preventing speech expressing ideas that offend.”

No doubt, there are pearl-clutchers who feel that way. But so what? Since when does imagined interest checkmate the Constitution? The entire Constitution is a codifiaction of the limits of Federal power, and the First Amendment lays down one of those limits.

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.”

In any context, and used by anybody, “slants” is a descriptive term and nothing more. Ditto for other common adjectival nouns like “blacks”, “southerners”, “midgets”, “orientals” (“orient” being synomous with “east”) … all mere descriptions. In comparison, “filthy fu***ng slants” would imply an intent to disparage. But even then, disparagement isn’t a crime; nor should it be.

    So who is the first group starting a band called “Obama, and the Mental Midgets?”

    Certainly a mere description. And a very accurate one.

      tom swift in reply to | June 19, 2017 at 4:32 pm

      First Amendment protection of free speech has nothing to do with accuracy … or good taste … or political utility … or practical value … or artistic merit … or anything else. To the extent that it does, speech is no longer free.

    DaveGinOly in reply to tom swift. | June 19, 2017 at 7:55 pm

    The justices may have been responding to specific government arguments about why the “Slants” name shouldn’t be permitted, e.g. it’s offensive, it’s demeaning, it’s racist. I can imagine the arguments that may have have been advanced by each of the justices’ reactions.

This should be fun when mockery of the obamas begins with hopefully very offensive trademarks.

This is a good ruling.

Well done Justices!

healthguyfsu | June 19, 2017 at 3:43 pm

Redskins going to get their trademarks back?

    fscarn in reply to healthguyfsu. | June 19, 2017 at 4:04 pm

    Without doubt. Dan Synder’s attorney was on the edge of the proverbial seat waiting for this ruling. Once the Court announced, his first phone would have been to Synder to get authority to begin reactivating the discontinued trademarks.

    Pam Geller and Robert Spencer will likewise reactivate their application for the trademark of SOIA, Stop Islamization of America, which was denied in 2014.

    This is a very important decision. All leftists, Muslims particularly, lust after shutting their critics down.

    Milhouse in reply to healthguyfsu. | June 19, 2017 at 5:46 pm

    Expect the TTAB to receive a demand to reverse its decision by the end of the week.

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.”

That’s the same argument he made in his dissent in the TX license plates case, and I think it’s a terribly weak one. In this case I think it’s correct that trademarks are not government speech, but in that case I think the majority got it right, license plates are government speech, and if the government is babbling, what of it? Are people, including the government, not entitled to babble if they choose to do so?!

What the evidence really showed in that case was not that the government is not speaking, but that it’s a whore, saying whatever people will pay it to say. But whores get to choose their customers too. And if a would-be customer won’t take no for an answer we call it rape. If a literal whore may refuse to sleep with a Klansman then the State of Texas may refuse to advertise his cause.

Here, on the other hand, the government is not speaking at all; it is merely preventing consumer fraud.

    Alito seems to have meant that the disparate and divergent views expressed in copyrighted materials would become official government speech if upheld. The cacophony of government speech that covers all trademarked phrases becomes unwieldy, and ultimately, dangerous.

    I suspect his fear was that all speech would become adjuticable, thus limiting Americans’ First Amendment rights pretty much across the board … at least until it reached the Supremes.

    Obama and Co frequently did things they knew to be unconstitutional because of the length of time it takes to bring suits. They knew they were breaking the law but decided it was better to apologize later than to ask permission first.

      Milhouse in reply to Fuzzy Slippers. | June 19, 2017 at 9:42 pm

      No, because he made the same argument in the license plate case. His position seems to be that unless the government has a clear, consistent message it wants to convey, it’s incapable of speech at all. If it says contradictory things it must not be the one talking, but rather it must merely be acting as a voice for others, and therefore must say whatever words anyone wishes to put in its mouth. In other words, it may not be selectively promiscuous, but must either be monogamous or take on all comers.

      Which is BS. Even if a celebrity athlete endorses five competing brands of shoe, it is he, not his clients, who is speaking, and he’s still entitled to turn down a sixth brand which he thinks is no good, or with whose owners he has a quarrel. And even if the government accepts payment from many people to repeat messages that completely contradict each other, but to none of which it objects, it is still entitled to turn down messages to which it does object.

We need to start a Save Chief Wahoo (the Cleveland Indians logo) campaign which Major League Baseball pressured the Indiana organization to demote in prominence. Chief Wahoo image here.

To me it is ridiculous that organizations have acceded to demands of social justice warriors to scrap logos and other images which the SJWs deem offensive to certain groups irrespective of the fact that the SJWs themselves do not belong to, nor otherwise have any connection to, the purportedly offended group. It is even more egregious when the purportedly offended group has never expressed any offense, and has even favorably acquiesced to the use.

For example, the University of Illinois was forced by the NCAA to drop all images of Chief Illiniwek of a Sioux Indian tribe or otherwise lose its NCAA sanctioning. Chief Illiniwek was always shown wearing a full feathered headdress, but never in a cartoonish or stereotyped way.

During halftime at football games a student would dress in traditional Sioux clothing, including the headdress, and perform a traditional Sioux dance. The performance was sanctioned by the Sioux nation which ensured the dance, music and clothing were culturally authentic. The Sioux nation even gifted the feathered headdress to the University.

    InEssence in reply to MadisonS. | June 19, 2017 at 10:18 pm

    Yeah, if we ban all this stuff, we would certainly have to ban sauerkraut. Before long, we wouldn’t even know what we were eating with all the ethnic dishes and so forth.

Well, duh. If the First Amendment only protected against speech that *nobody thought was offensive*, it would be so meaningless it would not even deserve to be in there.

A great victory too for uncounted High School sports teams with mascots who offend 0.001% of the public, such as our local Manhattan Indians (named in honor of one of the first Indian coaches in the school). Heck, about half of the *states* are named after Indian names. Can you see a suit in Federal court demanding that California (Indian name meaning Land of Fruits and Nuts) be renamed to something inoffensive?

“I hereby declare this state to be named Bleah.”