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FIRE Awaits Supreme Court Decision on Disparaging Trademarks

By January 18, 2017

Today, the Supreme Court of the United States will hear oral arguments in Lee v. Tam, a case that may have profound implications in the world of First Amendment law.

The dispute involves an Asian-American band called “The Slants,” purposefully named after an ethnic slur by their leader Simon Tam in order “to take on these stereotypes that people have about us, like the slanted eyes, and own them.” When The Slants sought to trademark their name, they were denied under a federal law barring registration of any mark “which may disparage … persons, living or dead, institutions, beliefs, or national symbols.” After the United States Court of Appeals for the Federal Circuit found the law unconstitutional under the Free Speech Clause of the First Amendment, the government appealed to the decision to the Supreme Court.

(The Washington Post recently interviewed the band about their experience.)

In a brief that cites trademarks ranging from The Beatles and Jay-Z to animal genitalia and a plethora of racial and ethnic slurs, Tam contends that the First Amendment bars the government from rejecting disparaging marks from registration. Tam claims that registering a mark confers significant financial advantages upon artists, to the point where many decide to choose a different name if denied registration. He further states that conditioning this benefit on a bureaucrat’s subjective interpretation of the name is effectively a content-based restriction on speech. This gives the government power to “drive certain ideas or viewpoints from the marketplace,” a result he argues is at odds with the freedom of speech.

The government’s brief counters that the First Amendment has never been construed to require government subsidies of derogatory speech. It defends the law on the grounds that it does not prevent The Slants or any other artist from using a particular name, only from deriving financial benefits from the trademark registration system. The government urges the Court to see the law as an eligibility requirement for an entirely voluntary government program rather than a regulation of disparaging speech. Although the First Amendment prevents the government from using the force of law to prohibit the freedom of speech, the government contends that it “does not confer an affirmative right to use government resources to facilitate private speech.”

The case also features several colorful amici curiae (friend-of-the-court) briefs, including one by the Cato Institute invoking the television show Seinfeld and another by the Washington Redskins listing hundreds of potentially offensive and derogatory registered trademarks.

Although the decision centers around trademarks, it could impact the battle against campus speech codes that FIRE fights on a daily basis.

Many campus speech codes feature bans on “disparaging” speech despite the Supreme Court’s repeated insistence that disparaging, distasteful, and offensive speech is generally protected under the First Amendment. Another ruling from the nation’s highest court that the government cannot disadvantage such speech would serve as a loud warning shot for the many public universities that still maintain unconstitutional speech codes.

Whatever the Supreme Court decides, FIRE will be closely watching what is shaping up to be a pivotal First Amendment decision. You can follow the latest developments of this case at SCOTUSblog.