Why Racially Offensive Trademarks Are Now Legally Protected

This article originally appeared on this site.

Simon Tam fought for eight years to register the trademark for his all-Asian rock band, the Slants. Tam said that the name—a reference to slanted eyes—was an effort to reclaim a racial epithet for Asians and transform a derogatory term into one evoking Asian pride. When Tam tried to register the trademark, the U.S. Patent and Trademark Office (P.T.O.) said that the band’s name was offensive to Asians and refused to register the mark. The P.T.O. applied a seventy-year-old federal law barring registration of trademarks that “disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” On Monday, the Supreme Court unanimously ruled the disparaging-trademarks provision unconstitutional, as a violation of free speech protected by the First Amendment. (The court’s newest Justice, Neil Gorsuch, did not participate because the case was heard before he was confirmed.) Going forward, the government will not be able to deny registration of any trademark simply because it is considered offensive.

The ruling makes all manner of racist, sexist, or otherwise insulting terms eligible for federal registration by someone who wishes to use them to identify the goods or services they are selling. Lots of money can be at stake. Registering a trademark means one enjoys a legal presumption of an exclusive right to use it. In 2014, the P.T.O. cancelled the trademarks for the Washington Redskins football team on the grounds that the team’s name offended Native Americans. The team will now get their trademark registration and have an easier time preventing others from selling items with the Redskins logos. The Slants’ aim of reclaiming a slur and turning it into a source of pride is appealing. But the Redskins scenario captures the more typical reason for the reluctance to use state power to enable businesses to profit from racial insults.

Several disturbing trends have emerged since the Supreme Court agreed to hear the case, nine months ago. Reported hate crimes have risen, due to inflamed political rhetoric that observers blamed on Donald Trump during the 2016 campaign, as well as a greater willingness among victims to report attacks. Today, the concept of white supremacy, until recently considered a relic of our past, has reëmerged and is openly espoused by political groups. At the same time, several state and local governments have decided to remove Confederate flags and monuments from public spaces in the South. Some colleges and universities have scrapped old mascots and symbols that may be perceived as implying collective pride in histories of slavery and oppression. Harvard and Yale have discontinued use of the title “master” for the heads of residential houses because it connotes being a master of slaves. Yale has renamed a residential college bearing the name of U.S. Vice-President John Calhoun, who is famous for his defense of slavery. While the power of names and symbols to alienate and offend in diverse communities is being taken more seriously, the use of words that denigrate minorities is becoming more commonplace. Some even argue that a backlash against increasing “political correctness” contributed meaningfully to people’s desire to elect Trump.

For the Justices, the Slants case was decided against a backdrop of conflicting impulses: on the one hand, to protect “underrepresented groups” from “demeaning messages,” as the government’s brief in the case put it; on the other, to enable free speech and open discussion in our society. Justice Samuel Alito’s opinion for four Justices across ideological lines reasoned that allowing speech that demeans people—even on the basis of race, gender, disability, religion, national origin, or sexuality—is part of “the proudest boast” of our law, which protects the freedom to express “the thought that we hate,” a phrase taken from Justice Oliver Wendell Holmes, Jr. We may loathe hateful speech, but the fact that the government can’t suppress it, even in a time of growing alarm about the rise of hate crimes, reveals our uniquely optimistic faith in free expression as protection against tyranny.

An opinion by Justice Anthony Kennedy, joined by three liberal Justices, was concerned with a particular kind of discrimination known in free speech doctrine as viewpoint discrimination, in which the government singles out some speech for disfavor based on disapproval of the views expressed—and which is unconstitutional. Denying registration of some trademarks because they are offensive, Justice Kennedy said, “is the essence of viewpoint discrimination.” He decried the attempt to “remove certain ideas from a broader debate” and mused that an audience’s offended reaction to an idea might “prompt further reflection, leading to a more reasoned, more tolerant position.” We would have to hope so, to believe that unfettered offense-giving will not simply tear our society apart.

In a sentence that seemed to echo our current political environment, Justice Alito posited a hypothetical trademark, “James Buchanan was a disastrous president,” which could be denied registration under the disparaging-trademarks law. Alito meant to show how troubling and absurd it is for the government to treat disparagement differently from praise. Imagine if the phrase “Trump is awesome” could be registered while “Trump is awful” could not. In this vein, Justice Kennedy analogized the disparaging-trademarks law to saying that “public officials could be praised but not condemned.” With a President in power who often adopts a punitive posture toward those critical of him and hails those who praise him, the old point that government should not disfavor people’s speech based on the message has a jolting contemporary resonance.

It may seem confounding that even though discrimination is illegal at work, at school, in housing, and in public accommodations such as restaurants, discriminatory speech is so strongly protected by law. The Court’s unanimous decision was part of a long line of cases assuming that, though words may hurt, the harm to our polity is far greater when the government gets to suppress the expression of some views and not others. But the debate will not end with this week’s ruling. Unlike governments, private institutions, such as most universities, are not constrained by the Constitution. Fierce debates on campus over what words and ideas are offensive and what best promotes inclusion may reach different results. But the principles animating the Supreme Court’s First Amendment decision are no less important in places where the Constitution doesn’t dictate an answer.

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