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SCOTUS Won’t Disparage Free Speech

detail of the Slants' logo on a drum set
photo by Grudnick

Occasionally, it is reassuring to find out you’re worried for no good reason.

In October, I wrote about a then-upcoming Supreme Court case about free speech and trademark law. The Slants, a band from Portland, Oregon, had its application for trademark registration denied on the grounds that the band’s name was disparaging to Asians and Asian-Americans. The U.S. Patent and Trademark Office did not care that the band was entirely composed of Asian-Americans, or that the choice of name was specifically designed to reclaim an antiquated slur. Nor did it matter that no one had actually complained about the band’s name. The PTO, citing a portion of the Lanham Act known as “the disparagement clause,” held firm – so the band’s founder, bassist Simon Tam, headed to court.

Back in the fall, I expressed apprehension that the Supreme Court might fail to recognize that the disparagement clause clearly ran afoul of the First Amendment. It turns out I needn’t have worried. The court held that the disparagement clause was unconstitutional in an 8-0 ruling. (Justice Neil Gorsuch recused himself, since the case was argued prior to his confirmation.)

Tam told Rolling Stone that he was thrilled with the outcome of the multi-year legal battle, which he saw as about much more than just his own musical group. "When I thought more deeply where those decisions should be made, I wanted them to be made in our own communities rather than be left to the government, which oftentimes gets it wrong,” he said.

While the justices offered slightly different legal reasoning in concurring opinions, the main thrust of their collective argument is hard to deny. As Justice Samuel Alito wrote for the majority, the disparagement clause “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Rightly, the high court emphasized that the government has no place attempting to decide which brands are too disrespectful and under what circumstances. And it dismissed the government argument that trademarks represent government speech, which must sometimes elevate certain points of view over others. The government is neither endorsing a name nor subsidizing it if it grants trademark registration.

The ruling in Matal v. Tam is heartening, but there is recent precedent for my uneasiness about the result as of several months ago. As anyone who has read my comments on the court’s Citizen United decision knows, I have disagreed with the liberal wing of the court before on how far First Amendment protections extend. Yet when a decision is praised both in the National Review and on the ACLU’s Twitter account, the issue is as close to a slam-dunk for free speech as you are likely to see.

Crucially, the case did not hinge on the band’s intent in selecting their name, which keeps the PTO out of the murky waters of trying to determine what an applicant is thinking at the time he or she attempts to register a mark. In fact, the government did not dispute that the band intended to use its name to promote a group, not insult it; it merely argued that some hypothetical person might be insulted anyway. The Court rightly said, however, that intent was beside the point where the disparagement clause is concerned. In his concurring opinion, Justice Anthony Kennedy wrote that “By mandating positivity, the law here might silence dissent and distort the marketplace of ideas.”

The Slants’ victory also offered a boost to the owners of the Washington Redskins, who are in the middle of an ongoing legal battle fighting the decision to strip the team of some of its trademark protections. The U.S. Court of Appeals for the Fourth Circuit had been waiting for the decision in Matal v. Tam before ruling. Team owners were understandably thrilled at a decision that seems likely to offer clear-cut support for restoring their trademark protections.

Tam himself, who has said he does not approve of the Redskins’ name, nevertheless points out that the First Amendment protects the team’s name as much as it protects that of his band. “From a business perspective, they have done everything that would allow one to have a trademark,” he said when asked in an interview. And, speaking to The New York Times more generally, he made the point that “The First Amendment protects speech even that we disagree with. You can’t say you want to shut down the conversation for other people, because that doesn’t advance progress.”

Speech that offends some hearers, including speech that falls within the disparagement clause, has a long and robust history in American discourse. I had hoped that the Supreme Court would see the clear conflict between the First Amendment and the disparagement clause, and rightfully discard the latter. Not only did the justices do so, they did so unanimously. A clear victory for free speech is always worth celebrating.

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