The band The Slants performing in Phoenix, Ariz., 2016. Photo by Gage Skidmore.
These words probably sound familiar: “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 of the right of people peaceably to assemble, and to petition the government for a redress of grievances.”
This is the First Amendment to the U.S. Constitution, the very first order of business in the Bill of Rights, on which the original 13 states insisted before they would ratify our nation’s basic law. It was enacted in 1789 and, if anything can be said to be the founding principle of our republic, this is it.
Here is another set of words that has been in the law books a long time – 70 years – although this language is neither as well-known nor as venerable as the Bill of Rights. “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; [...].”
This is the controversial portion of Section 2(a) of the Lanham Act, which governs the registration of trademarks in the United States. It is possible to create and use a trademark without registering it, but registration is required to avail oneself of several benefits, such as bringing an enforcement suit in federal courts or having Customs prevent infringing goods from entering the country.
The First Amendment says Congress cannot make a law regulating speech. But Congress wrote the Lanham Act, which clearly does just that: It denies important federal benefits and private legal rights to those who own trademarks that the government, in whatever passes for the wisdom of the day, deems to be “immoral,” “scandalous” or disparaging of any people, institutions, beliefs or national symbols. So if, for example, the widely known peace symbol is someday deemed to disparage the U.S. military, presumably the Patent and Trademark Office could revoke the registration of any marks incorporating that symbol.
I don’t see how these two sets of words can be reconciled. Sometime during the U.S. Supreme Court term that begins today, we may find out if a majority of the eight (or perhaps, by that time, nine) sitting justices agree with me.
The court announced last week that it will hear the government’s appeal of a Federal Circuit Court of Appeals ruling that held at least the disparagement provisions of the Lanham Act unconstitutional. That case was brought by Simon Shiao Tam, leader of an Asian-American rock band that calls itself The Slants. The band – like many – sought to register its trademark to protect its merchandise sales and other business from infringement by knock-offs. But the government denied registration on grounds that the band’s name is disparaging to Asians and those of Asian descent, even though the group specifically sought to co-opt the perceived racial slur and turn it into a point of pride.
The government's position boils down to the rationale that because others might be offended by the band’s name, the government can make a decision to grant or deny legal benefits based on the message conveyed by words or pictures.
To me it seems obvious that this fails to clear the First Amendment’s hurdle, but to a lot of others – including other judges and courts that have considered this issue – it isn’t so obvious at all. Another, more familiar, case making its way through the courts is that of the Washington Redskins, whose federal trademark registration was revoked after decades because the government deemed its long-used name and symbol disparaging to American Indians.
Defenders of the government’s position, including three dissenters on the Federal Circuit in the Tam case, offer a variety of justifications, including a distinction in Supreme Court precedent between the level of scrutiny applied to restrictions on political speech versus that of commercial speech. (Essentially, outright lies in political speech are nonetheless protected, whereas lies in commercial speech can constitute fraud, and thus are a form of theft rather than of communication, which justifies some basic requirements of honesty in such speech.)
These are just rationalizations for today’s politically correct mindset. The entire point of the First Amendment is that offensive speech is nevertheless protected. A band name is just a band name; a Redskin symbol is just a symbol. If a neo-Nazi sympathizer wants to trademark a drawing that incorporates a swastika and then sell merchandise using that symbol, that is his or her right in this country – as opposed to, say Germany, where such symbolism is outlawed. We are not Germany. We are not afraid of obnoxious speech.
There is plenty of political correctness on the Supreme Court, especially right now in the liberal wing that believes Citizens United was wrongly decided. They have forgotten how recently the law was used to suppress other forms of speech, including the monologues of comedian Lenny Bruce. It isn’t a slam dunk that a high court decision will go the way I think it should, especially if the decision is made by a court that includes a Hillary Clinton appointee. Clinton, by the way, was the focus of the speech the government tried to restrict in Citizens United.
In the end, it is all just words. I believe the First Amendment entitles us to respond to or ignore, however we choose, the words that offend us while respecting the rights of others to utter those words. There are some in the judiciary, and possibly on the Supreme Court, who would instead choose to ignore the words in the First Amendment.