The line between a racial slur and free speech

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When it comes to generating controversy, trademark law might not come immediately to mind. And yet a recent Supreme Court ruling on trademarks which include disparaging racial or ethnic terms is now part of a conversation about the power of words, and the cultural value of “reclaiming” offensive language.

Objectionable or powerful?

The ruling came from a case in which Simon Tam, lead singer of an Asian-American rock band, had applied to register his band under the trademark “The Slants.” The U.S. Patent and Trademark Office (PTO) denied the application, based on a provision of the Lanham Act that bans the registration of trademarks that disparage people or groups. Tam sued in administrative court, then took his case to federal court. The federal court found for Tam, but the PTO appealed.

Tam acknowledges the charged nature of his band’s name. In fact, that is precisely his point. “The notion of having slanted eyes was always considered a negative thing,” he said, as reported by NPR. Tam and his Asian-American bandmates consider their name an act of cultural re-appropriation—of turning an offensive slur into term of pride.

Unanimous ruling

In an 8-0 opinion delivered by Justice Samuel Alito, the Supreme Court found that the Lanham Act’s disparagement clause violated the First Amendment’s guarantee of free speech. While noting that the government “has an interest in preventing speech expressing ideas that offend,” Alito found the Lanham Act provision too broad, calling it a “happy-talk clause.”

In a concurring opinion, Justice Anthony Kennedy addressed the issue of viewpoint discrimination. “With few narrow exceptions, a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys,” he wrote.

Does it mean “Redskins” is OK?

The Tam case has been closely followed by the NFL’s Washington Redskins, whose trademark had been canceled by the PTO in 2014 based on the same standard that had sunk Tam’s application. Since then, the football team has been involved in its own legal battle and tried, unsuccessfully, to convince the high court to hear its case along with Tam’s. “I am THRILLED. Hail to the Redskins,” team owner Dan Snyder said in a statement following the Supreme Court’s decision.

For his part, Simon Tam has been outspoken about his opposition to the use of the Redskins name and logo. In a blog post determined to draw distinctions between the two cases, Tam called “redskins” an “inherent racial slur” that “has a long history of demeaning Native Americans.”

It’s also true that, while The Slants are a band composed entirely of Asian-Americans, the Redskins are a corporate entity comprised of football players, owners, and associated employees with no unifying racial identity. The law will continue to wrestle with how much that should matter.

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