Judiciary

SCOTUS Protects Speech, Offensive or Otherwise

A win for The Slants, a win for the Redskins, and a win for every other American who enjoys Liberty.

Arnold Ahlert · Jun. 22, 2017

In a decisive victory for free speech, the Supreme Court ruled 8-0 on Monday that a federal trademark law banning offensive names violates the First Amendment of the Constitution. In short, government cannot punish speech simply because some officials don’t like it.

At issue was the “disparagement provision” of the 1946 Lanham Act signed into law by President Harry Truman. The clause banned the registration of any trademark that “may disparage persons, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

While the justices were unanimous in their ruling, they wrote two different opinions supporting the decision. “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 we hate,” Justice Samuel Alito wrote. He was joined by Chief Justice John G. Roberts, and Justices Clarence Thomas and Stephen Breyer.

“A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all,” Justice Anthony Kennedy wrote. He was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Justice Neil Gorsuch did not take part in the case.

The case itself, Matal v. Tam, was filed by Asian-American musician and political activist Simon Tam, who named his rock band “The Slants” precisely because it is seen as an offensive term. Tam wanted to “re-appropriate it into something positive and empowering,” he stated in January. He further cited the realities of the music business in pursuing his efforts, adding, “If you want a record label deal, they won’t sign you unless you have a registered trademark.”

Nonetheless, his request for a trademark was denied because the government considered the name disparaging to “persons of Asian descent.”

The band illuminated a bit of hypocrisy with regard to “offensive names,” noting that hip-hop’s N.W.A. — which stands for “Niggaz Wit Attitudes” — was able to register their name. So were entities with names such as “Take Yo Panties Off,” or “Capitalism Sucks Donkey Balls.”

Justice Alito noticed. “The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates,” he wrote. “If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”

Tam, who lost the initial rounds of his fight in lower courts, saw his first vindication in a majority ruling by the U.S. Court of Appeals for the Federal Circuit, which stated government may not “penalize private speech merely because it disapproves of the message it conveys.”

Following Monday’s decision, Tam posted his satisfaction with the result on his Facebook page. “After an excruciating legal battle that has spanned nearly eight years, we’re beyond humbled and thrilled to have won this case at the Supreme Court,” he wrote. “This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves.”

Tam is right about the decision being “much bigger than our band.” “The case also has obvious implications for the similar dispute involving the Washington Redskins, who had their trademark canceled under the same statute and theory that the justices invalidated today,” said University of Texas law school professor and CNN legal analyst Steve Vladeck. “It should now follow that their trademark also should not have been invalidated.”

Washington Redskins Attorney Lisa Blatt concurred. “The Team is thrilled with today’s unanimous decision as it resolves the Redskins’ long-standing dispute with the government,” she told CNN in a statement. “The Supreme Court vindicated the Team’s position that the First Amendment blocks the government from denying or canceling a trademark registration based on the government’s opinion.”

Despite decades of use, the Redskin’s trademark was canceled in 2014. In 2015, U.S. District Judge Gerald Bruce Lee ordered the U.S. Patent and Trademark Office to schedule the cancellation of six federal trademark registrations owned by the team, affirming a decision by the Trademark Trial and Appeal Board (TTAB). Lee also ruled that while the team loses specific legal protections of trademark registration until all appeals cases are heard, it was free to continue using the name as it chose.

All despite records showing the office never received a single public complaint about the team’s name.

Nonetheless, Lee concluded the federal trademark program “is government speech and is therefore exempt from First Amendment scrutiny.”

The government speech doctrine asserts registered trademarks are “government speech,” not the speech of the trademark’s owner. Thus a registration could be denied, not because government disagreed with an owner’s viewpoint, but because it did not wish to include disparaging terms in its own speech.

SCOTUS’s ruling severely limits that threat to free speech jurisprudence as well.

Currently, the NFL team’s case resides with the Fourth Circuit Court in Richmond, which was awaiting the decision in Matal v. Tam. Undoubtedly, that court will follow SCOTUS’s lead.

Regardless, attorney Jesse Witten, who represents the team’s Native American challengers, remained defiant. “Nothing in the opinion undermines the decision of the [Patent and Trademark Office appeal board] or the District Court that the term ‘redskin’ disparages Native Americans,” he said in a statement.

All well and good, save for the inconvenient reality the Supreme Court seemingly eviscerated the entire disparagement clause.

Attorney Daniel J. Kornstein illuminated the preferences of those who ostensibly know what’s best for the rest of us, declaring the Court’s decision “looks more like a victory for government-sanctioned bigotry than a win for free speech.” He further insisted the reclamation of “an ethnic slur or other derogatory term with entrenched historical and cultural connotations to turn it into something more positive requires collective action and community acceptance.”

In other words, free speech itself should be determined by consensus rather than the Rule of Law. The Justice Department took a similar stance at the Supreme Court, arguing that trademarks are essentially government speech and that government should be allowed to prevent “underrepresented groups” from being “bombarded with demeaning messages in commercial advertising.”

In a 2014 column, Stacy Swimp, writing on behalf of the Project 21 black leadership network, illuminated the disturbing implications. “If the government can go after the Washington Redskins football team in this way, the government can likely go after any disfavored business, organization or social group that has similar protected trademarks, patents and copyrights if it chooses to do so,” he explained.

No longer. “Speech may not be banned on the ground that it expresses ideas that offend,” Alito stated.

No doubt many leftists will find the ruling itself offensive, especially on college campuses where students and professors, abetted by cowardly administrators, not only seek to suppress that which “offends” them, but will resort to violence if necessary to do so.

SCOTUS has made it unanimously clear that worldview is headed to the ash heap of history, where it so rightly belongs.

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