by Andrea Moury
Yesterday, the Supreme Court ruled unanimously that the government cannot silence speech which falls outside of its definition of “politically correct.”
The case, Matal v. Tam, involved the US Patent and Trademark Office’s refusal to register a rock band’s name because it might offend some people. The “disparagement clause” of a federal trademark law was cited to back up the federal government’s decision not to grant a trademark to the Asian American band called The Slants.
The “disparagement clause,” a provision of the 1946 Lanham Act, specifies what type of trademarks may be refused.
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—
(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute…
In Monday’s decision the Supreme Court ruled that by prohibiting trademarks that could insult a group of people, the “disparagement clause” violated freedom of speech and was unconstitutional. Even speech which might be deemed “offensive” by some is still protected by the First Amendment.
Holding that the Lanham Act’s “disparagement clause” infringes on First Amendment rights, Justice Alito wrote the opinion of the court:
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.
The justices emphasized the importance of protecting free speech — even speech that is regarded by some as hateful:
Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).
The Slants never intended for their band’s name to be offensive. Rather, according to the band’s founder, Simon Tam, they wanted to use the racist slur as “a badge of pride” for their Asian race. They wanted to use it to embrace their ethnicity:
We grew up and the notion of having slanted eyes was always considered a negative thing. Kids would pull their eyes back in a slant-eyed gesture to make fun of us. … I wanted to change it to something that was powerful, something that was considered beautiful or a point of pride instead.
The ACLU argued that the government was censoring the band by refusing to grant it a trademark:
The Slants chose their name to reclaim and redeem a racial slur often used against Asians and Asian-Americans. After they applied for the registration, the PTO examiner handling their application denied them a trademark — after Googling the band and discovering it was made up of Asian-American rockers. He thus determined that the band was using “slant” as a slur and denied their application under the Lanham Act.
That was censorship, pure and simple.
The Cato Institute praised the Supreme Court’s decision as a victory for all who value their freedom of speech:
The Lanham Act’s disparagement clause placed an unconstitutional condition on those who consider the use of an edgy or taboo phrase to be part of their brand: either change your name or be denied the right to use it effectively. Whether you’re a musician, a politician, or a sports team—the Washington Redskins’ moniker will now be safe—it’s civil society (consumers, voters, fans) who should decide whether you’re being too offensive for polite company.
This case sets a precedent for other similar lawsuits, such as one against the Washington Redskins football team, which had its trademark registration canceled in 2014. That case is in the US Court of Appeals for the 4th Circuit where it was awaiting the decision on The Slants case.
Daniel Snyder, the owner of the Redskins, is hopeful that because of yesterday’s ruling, his team will again be able to trademark their name, a name which he points out only actually offends 10 percent of Native Americans. Snyder applauded the Court’s ruling in a statement saying, “I am THRILLED. Hail to the Redskins.”
The ACLU believes that the case of the Redskins football team name is a different story because it does not seek “cultural reappropriation.” However, since it would be impossible to allow The Slants to trademark their name and simultaneously forbid the Redskins to trademark theirs, the organization repeated Cato’s statement that it is up to private citizens to boycott companies that offend them, rather than to the government to silence them:
Let’s be clear: Unlike in the Slants’ case, there is no cultural reappropriation going on with the NFL team. But there’s no way to lawfully censor speech that offends us without allowing the government the power to censor speech that offends anyone — including The Slants’ band name. When we object to ideas that appear in our marketplace, the default response shouldn’t be to sweep them under a rug and pretend that they aren’t there, but rather call them out, boycott companies that make products that offend us, and ensure our spending reflects our values.
The Supreme Court has made it quite clear that it will not permit the government to shut down speech which it determines is not “politically correct.” The Bill of Rights protects every American’s right to express himself or herself through speech, even if it offends others — and that is “the proudest boast of our free speech jurisprudence.”