The U.S. Supreme Court has once again upheld the belief that the answer to unpopular speech is more speech, not less. The court ruled 8-0 Monday that the federal government cannot deny a trademark to the Asian-American rock band The Slants because their name might be offensive.
Group member Simon Tam said the band “draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes.” He says the band’s name is their way of reclaiming the bigoted phrases and undermining stereotypes.
However, the U.S. Patent and Trademark Office (PTO) denied the band’s registration request citing the Lanham Act provision that prohibits trademarks that “disparage… persons living or dead, institutions, beliefs, or national symbols.”
The government argued that patents and trademarks are forms of government speech, which is exempt from the First Amendment. However, all eight Justices disagreed. Justice Samuel Alito wrote the opinion, saying that the patent office’s policy amounted to a suppression of speech.
“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful,” he wrote, “but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
The Tams decision will affect other controversial trademarks. The Washington Redskins NFL football team has been fending off trademark registration challenges from those who see the name as disparaging. This won’t settle the argument over how the team should be identified, but it does clear the way for its trademark to be protected.
Also the pornography company Kink.com has been trying to trademark “F——Machines,” but has been rejected by the patent office under the Lanham Act. The high court’s ruling could open the door for the Redskins, Kink.com and any others with controversial, pornographic or offensive names to be trademarked.
The name “Redskins” or the term for a porn site may be abhorrent or disparaging, but that’s not for the government to decide. Justice Anthony Kennedy in his concurrence pointed out that a law against speech found to be offensive “can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence.”
As always, the marketplace of ideas will sort it out, and restricting speech, even if it is only the name of a patent, has a chilling effect on that process.