It's funny: now that I'm out of law school, I enjoy reading Supreme Court cases.
Anyway, the day of reckoning is finally upon us. Matal v. Tam (formerly Lee v. Tam) has just been decided by the Supreme Court of the United States: the disparagement clause of the Lanham Act, 15 U.S.C. § 1052(a), is unconstitutional under the Free Speech Clause of the First Amendment. I’m not too surprised by this outcome and, personally, I think the Court came to the right decision.
First, by way of background for those who aren’t familiar with this case, The Slants are an all Asian-American dance rock band based in Portland, Oregon. Their name is partially derived from the anti-Asian slur referring to the shape of their eyes. Simon Tam, the founder and bassist for the band, applied to register the “The Slants” at the U.S. Patent and Trademark Office. The examining attorney refused to register the mark on the basis that it disparaged Asian people in violation of section 2(a). Tam appealed to the Trademark Trial and Appeal Board, which affirmed the decision of the examining attorney. Tam further appealed to the U.S. Court of Appeals for the Federal Circuit, which heard the case en banc, meaning that the entire court heard the case, rather than the three-judge panel typical of hearings before U.S. Courts of Appeals. The Federal Circuit ruled in Tam’s favor, finding that the disparagement clause is unconstitutional under the Free Speech Clause of the First Amendment. Finally, then-Director of the USPTO, Michelle Lee, petitioned the Supreme Court, and the Court granted cert.
In short, the Supreme Court agreed that the disparagement clause is unconstitutional because it isn’t “viewpoint-neutral.” The Courts are very reluctant to uphold a law that restricts speech based on its content. This includes laws that favor or discourage a particular viewpoint. In Tam’s case, the Court concluded that “The Slants” and similar offensive or hateful language is a viewpoint, and by refusing to register it, the government took a side. The Court rejected the government’s arguments that (1) trademarks are government speech (they aren’t); (2) trademarks are a form of government subsidy (they aren’t); and (3) that the Court should adopt a new test to determine the constitutionality of the disparagement clause (it shouldn’t).
So The Slants will likely get their trademark registration, provided there are no further substantive problems with the mark.
As I said, I think the Court made the right decision. Like it or not, we have a longstanding legal tradition of protecting even offensive speech:
[T]he proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” Lee v. Tam, 582 U.S. _ (2017) (quoting United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting)).
It isn’t the government’s place to police unpopular, offensive, or hateful ideas – it’s the people’s. Those of us who abhor hateful speech have to counter it with our own speech, and hope that when it all shakes out, the majority of people are well-meaning, rational, and on our side. I get it, though. It's 2017. Simon Tam might be a special case – not everyone who adopts an ethnic slur is a marginalized minority doing so with the intention of co-opting it. Did the Supreme Court just open the floodgates and permit the U.S. Trademark Register to become a wretched hive of scum and villany?
I don’t think so.
Here’s the thing: first, Brandenburg v. Ohio has been on the books for almost 50 years now. National Socialist Party of America v. Village of Skokie, 40 years (40 years last Wednesday – spooky). People know that protected free speech includes hate speech. Have you read YouTube comments before? People know.
Second, I’m going to assume that the small number of opportunists who, inspired by this decision, decide to apply to register a hateful mark solely for the purpose of being hateful probably don’t understand federal trademark registration procedure. It’s a legitimate legal proceeding not unlike filing a lawsuit. U.S. trademark registrations and applications are public record, including the applicant’s name and address. Even if someone pays the $225-600 filing fee, fully expecting to abandon the application, the record is permanent. For the even smaller number of folks who intend for their marks to register, they have to show use in commerce, meaning that at some point they have to transact business using that mark and submit proof, which also becomes public record. If someone really wants their name or business to be permanently associated with a hateful mark, fair enough. For most, though, I imagine it isn’t preferable.
It’ll be interesting to see where trademark law goes from here (if anywhere). I believe the Redskins appeal was stayed pending the outcome of this lawsuit, so that case might be decided soon now that there's guidance from the Court.
As always, if you have any questions about trademarks, contact me!
You can read the full Supreme Court Opinion here!
For more legal scholarship regarding the Tam case, SCOTUSBlog has some solid coverage, as well as all of the amicus briefs if you're a real Constitutional law junkie.