Editor’s note: As per usual for this time of year, the Supreme Court issued a slew of consequential rulings recently on a bevy of hot-button issues. This is the first in a three-part series exploring a few of them.
When you see a trademark, whom do you assume is speaking? The one who came up with the idea, or the government that issued the trademark?
For the last seven decades or so, the correct legal answer has been the government. The Latham Act, signed by President Harry S. Truman in 1946, is the country’s main federal trademark law. The text prohibits registration of trademarks that may “disparage … or bring … into contempt or disrepute any persons, living or dead.” The eight justices of the Supreme Court, excluding newly confirmed Associate Justice Neil Gorsuch, ruled unanimously against this language in the case of Matal v. Tam, which was argued Jan. 18 and decided June 19.
“Simon Tam, lead singer of the rock group ‘The Slants,’ chose this moniker in order to ‘reclaim’ the term and drain its denigrating force as a derogatory term for Asian persons. Tam sought federal registration of the mark ‘THE SLANTS,’” reads the case’s syllabus. “Tam contested the denial of registration through the administrative appeals process, to no avail. He then took the case to federal court, where the [full] Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause.”
I believe the court made the correct decision here.
“Trademarks often have an expressive content,” wrote Associate Justice Samuel Alito, in his majority opinion. “Companies spend huge amounts to create and publicize trademarks that convey a message. It is true that the necessary brevity of trademarks limits what they can say. But powerful messages can sometimes be conveyed in just a few words. Trademarks are private, not government, speech. ... This Court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. The Federal Government does not dream up the trademarks registered by the PTO.”
The First Amendment, as always, is quite clear on these matters.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” it reads.
No one who understands those words could support the continued prohibition on such trademarks, even, and maybe especially, offensive ones.
“The Patent and Trademark Office denied the application,” wrote Alito. “We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
What Tam is doing here is turning a condemnable slur on itself as a powerful, positive weapon.
“He chose this moniker in order to ‘reclaim’ and ‘take ownership’ of stereotypes about people of Asian ethnicity,” wrote Alito. “The group ‘draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes’ and has given its albums names such as ‘The Yellow Album’ and ‘Slanted Eyes, Slanted Hearts.’”
I mean, aren’t such artists as N.W.A. and Uncle Kracker doing the same thing?
Rob Burgess, Tribune city editor, may be reached at firstname.lastname@example.org.