Victory! The Slants Are Officially Rock Stars of the First Amendment

The Supreme Court today struck down portions of the Lanham Act, a 1946 federal trademark law that allowed the government to deny “offensive” trademarks as a violation of trademark holders’ free speech rights. Agreeing with arguments made by the ACLU in its brief to the court, the justices held that the First Amendment prevents the government from withholding a substantial government benefit just because it doesn’t like what you have to say.

The court’s ruling makes a second, less formal determination: The Chinatown dance-rock band The Slants are the new poster children for the First Amendment.

The justices unanimously agreed that The Slants’ First Amendment rights were violated when the government claimed the right to control their speech in exchange for offering a trademark. The opinion warns against government moves to “silence or muffle the expression of disfavored viewpoints.” Fortunately, the risk of that kind of broad censorship is much lower after today’s decision.

The Slants chose their name to reclaim and redeem a racial slur often used against Asians and Asian-Americans.

Years ago, The Slants applied for a registered trademark, a massive financial benefit handed out by the federal Patent and Trademark Office (PTO). For any band with an aspirational following, a registered trademark means a lot: the right to brand yourself — and your products — with an expression of your choosing and a strong right to enforce your claim against fakers and counterfeiters. That makes the registration of trademarks a substantial government benefit. And if the First Amendment means anything, it means that the government can’t hand out benefits based on how much it agrees with the views you express.

There is absolutely no doubt that this particular trademark expresses a very clear message: 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 Lanham Act is a federal law that — until today — permitted the government to deny registered trademarks determined to be “disparag[ing],” or otherwise “offensive” or “immoral” to a “substantial composite” of an affected group. And despite the fact that the members of the Slants are themselves part of the “affected group” in question, the PTO found the name too offensive for a registered trademark.

The Slants weren’t satisfied with that decision. And like the rock stars they are, they didn’t take it lying down. The band appealed the PTO’s decision to the U.S. Court of Appeals for the Federal Circuit, where we filed an amicus brief and provided oral argument to the court on the glaring First Amendment problems with the Lanham Act. The band — and the First Amendment — won. But the federal government appealed to the Supreme Court.

Watch: The Slants Perform at the ACLU

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And thank goodness it did!

Today the Supreme Court affirmed a core value of free speech: The government cannot withhold a benefit in order to limit or punish what it perceives to be offensive speech. And hopefully today’s decision will put a stop to the absurd practice of PTO examiners acting as formal speech police, Googling people to find out if they’re the “right kind” to receive a government benefit.

As with many things under the First Amendment, this decision may lead to uncomfortable results: Products with truly racist or sexist names will (continue to) appear on shelves and a certain Washington football team now undoubtedly gets to retain its own offensive team name, which lost its trademark in 2014 in a decision upheld by lower courts.

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.

Censorship doesn’t just violate the First Amendment — it often doesn’t produce its intended results. As many activists who lived through the civil rights era, or protested in the streets just this past year, could tell you: Restrictions on free speech are often applied most stringently against groups trying to challenge the status quo.

The Slants are no exception. Decades of history have taught the ACLU that freedom of speech and racial justice are inseparable. And The Slants are now officially rock stars of both.

The ACLU’s brief on behalf of The Slants' First Amendment rights was filed along with the ACLU of Oregon, the ACLU of the District of Columbia, and a group of racial justice organizations.

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AmishaiGG

Who formally filed the case?

AmishaiGG

Who formally filed the case?

Arvilla Rayo

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Andrei Mincov |...

This is the decision that a lot of people were waiting for. I was hoping for it. A huge victory for free speech and trademark rights. In a way, Obama administration's attack against Redskins' trademarks provided a perfect example of the government usurping free speech and depriving a football team with a long history of one of their most valuable assets, their brand. In case you haven't heard, just before the USPTO Trademark Trial and Appeal Board voted to cancel six trademarks owned by Redskins in 2014, President Obama in an interview said, "If I were the owner of the team and I knew that there was a name of my team — even if it had a storied history — that was offending a sizeable group of people, I’d think about changing it." Whether TTAB's decision was made with a view to Obama's words is secondary. What matters is that it could have created a dangerous precedent when the government could destroy your property, just because they didn't like your message. Because of the procedural status, Redskins' trademarks were not the ones that the U.S. Supreme Court looked at in the Slants case, but everyone knew that its decision would create a precedent that would either allow Redskins to regain their trademarks or whether it would open the door to mass-expropriation of intellectual property by the government. In the Slants case, a band sought the court's opinion that just because some may find the word "slants" offensive, it should not bar the music band with that name from registering it as a trademark. The case was more about free speech than it was about trademarks. Remarkably, the Supreme Court found that free speech trumps the government's desire to suppress it. Duh!

Justice Alito's words provide a good insight on the dynamics of this case: "...it is far-fetched to suggest that the content of a registered mark is government speech. If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things... It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public... For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to “make.believe” (Sony), “Think different” (Apple), “Just do it” (Nike), or “Have it your way” (Burger King)? Was the Government warning about a coming disaster when it registered the mark “EndTime Ministries”?"

So yes, Slants will be able to get their trademarks registered. Redskins will probably be able to get their trademark registrations restored.

Two other questions arise in this regard, however.

First question is whether the decision of the Supreme Court would also do away with prohibition on registration of "immoral or scandalous matter"? The Slants case dealt with "matter that may disparage... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." The Federal Court whose decision the Supreme Court affirmed found that "the disparagement proscription of [§1052(a) of the Trademarks Act] is unconstitutional. However, there are other proscriptions in §1052(a) of the Trademarks Act, namely a proscription against registration of immoral, deceptive, or scandalous matter. USPTO routinely denies registration of swear words as trademarks. In theory, the reasoning behind "scandalous and immoral" prescription is exactly the same, the government making a value judgement about the merits of the message, which was just found unconstitutional. On the other hand, the courts' decisions only deals with a very narrow (although hugely important) provision. Looks like the decision of the Supreme Court should open the door to registration of a whole bunch of four-letter-worded trademarks. The real question is whether USPTO will require someone to try their case in court again.

Second question is whether the decision of the Supreme Court would also open the door to registration of marijuana brands on the Federal level. Currently, because marijuana is not legalized federally in the U.S., USPTO refuses to register trademarks that have anything to do with what can be a federal crime. Granted, this issue is separate, but it's a huge problem now that marijuana is legalized—and is becoming a massive industry—in several American states, while the players cannot properly secure that which allows their consumers to tell one brand from the other.

It would be very interesting to see what influence this Supreme Court decision will have over the development of trademark laws in the U.S.

Andrei Mincov
Founder and CEO of Trademark Factory® / https://trademarkfactory.com, the only firm in the world that offers trademarking services with a predictable, guaranteed result, for a predictable, guaranteed budget. We can help you register your trademarks with a free comprehensive trademark search, for a single all-inclusive flat fee, with a 100% money-back guarantee.

Eli Samuel Goldman

In regard to slurs and racism, and contributing/restoring power to the people, I'll tell you more about the actual discussions that never finished or met the criteria to constitute a "contract." And how Donald J. Trump ended up OWNING the U.S.A. and had people manipulate my own idea to turn me into an actual slave in real life, use me via manipulation of people to go against the very core founding principles of the laws/framework of the United States to put an elite (mainly white) ruling class in power with him as absolute ruler. ---I want it known that even had the conversations been a finalized contract (they never were; I was led to believe there would be no show.) They went against EVERYTHING that was the ENTIRE POINT of the show, and all things discussed were either violated, ignored, twisted into a completely different meaning/purpose, and all perverted to accomplish the opposite goals intended!!!! To start with, I want it know in the discussions there was supposed to be a political non-interference clause much like Star Trek's Prime Directive (unless a serious crime is committed or someone is hurt) as well as no direct influence of a leader, company, or group other than what is expressly stated in the agreement (or if I request it); there also was supposed to be no retaliatory actions...this was agreed to make the show safe, organic, real, honest and so noone can be forced or manipulated into preferences. -- (example, if we use a product we normally use in real life other companies cant retaliate or force ads or a product by coersion, similarly with candidates or anything else) Instead Trump's white supremicists, brainwashed followers, and corporate partners interfered, coerced, terrorized, manipulated, cajoled, forced opposing ads and products that support him and his campaign. In fact Trump's people broke every rule, agreement, law, violated every right all along. The whole reason for no direct contact is to keep what Trump's white supremicist, elitist and brainwashed supporters from doing EXACTLY WHAT HE HAD THEM DO!!!! He enforced people following the rules to keep them from stoping his followers from breaking all the rules, to keep law enforcement from questioning and investigating and to convert to his team or terrorize everyone into silence till he could seize absolute power. ( will charge the write more)

Eli Samuel Goldman

Before I tell more I'd like it known that I find it disturbing that Bejamin Netanyahu and thus my holy land is partners with a group of Nazis. Israel was resettled to take back our ancestral lands, to protect Jewish people, and excape anti-Semitic people and Nazis and elitists like Donald Trump and his partners. Jared Kushner is a Jew who sold out his own people and married into a white-supremicist family for money, power, prestige and (possibly) harbored bigotry of his own. At worst he goes against every tenet of Jewish wisdom/thought, and blinds our people into overlooking the endless parallels between Adolph Hitler's history/views/actions and Trump's. At best he's playing a real-life Oskar Schindler role among Trump's group and has gotten so caught up on the inside that he's become akin to an undercover police officer who BECOMES part of a crime family and hence an enemy of The People. To Israel I ask them to never forget the lessons of our past or we all will be doomed to relive them. Israel, you are currently in negotiations and agreements with a NAZI LEADER (Fuhrer Trump) going by a different title than "Chancellor." Is the holyland so willing to sell out the Jewish people to a man whose entire rise to power, life and campaign was modeled after Adolph Hitler's own views and goals?

Eli Samuel Goldman

Before I tell more I'd like it known that I find it disturbing that Bejamin Netanyahu and thus my holy land is partners with a group of Nazis. Israel was resettled to take back our ancestral lands, to protect Jewish people, and excape anti-Semitic people and Nazis and elitists like Donald Trump and his partners. Jared Kushner is a Jew who sold out his own people and married into a white-supremicist family for money, power, prestige and (possibly) harbored bigotry of his own. At worst he goes against every tenet of Jewish wisdom/thought, and blinds our people into overlooking the endless parallels between Adolph Hitler's history/views/actions and Trump's. At best he's playing a real-life Oskar Schindler role among Trump's group and has gotten so caught up on the inside that he's become akin to an undercover police officer who BECOMES part of a crime family and hence an enemy of The People. To Israel I ask them to never forget the lessons of our past or we all will be doomed to relive them. Israel, you are currently in negotiations and agreements with a NAZI LEADER (Fuhrer Trump) going by a different title than "Chancellor." Is the holyland so willing to sell out the Jewish people to a man whose entire rise to power, life and campaign was modeled after Adolph Hitler's own views and goals?

Eli Samuel Goldman

Before I tell more I'd like it known that I find it disturbing that Bejamin Netanyahu and thus my holy land is partners with a group of Nazis. Israel was resettled to take back our ancestral lands, to protect Jewish people, and excape anti-Semitic people and Nazis and elitists like Donald Trump and his partners. Jared Kushner is a Jew who sold out his own people and married into a white-supremicist family for money, power, prestige and (possibly) harbored bigotry of his own. At worst he goes against every tenet of Jewish wisdom/thought, and blinds our people into overlooking the endless parallels between Adolph Hitler's history/views/actions and Trump's. At best he's playing a real-life Oskar Schindler role among Trump's group and has gotten so caught up on the inside that he's become akin to an undercover police officer who BECOMES part of a crime family and hence an enemy of The People. To Israel I ask them to never forget the lessons of our past or we all will be doomed to relive them. Israel, you are currently in negotiations and agreements with a NAZI LEADER (Fuhrer Trump) going by a different title than "Chancellor." Is the holyland so willing to sell out the Jewish people to a man whose entire rise to power, life and campaign was modeled after Adolph Hitler's own views and goals?

Eli Samuel Goldman

Before I tell more I'd like it known that I find it disturbing that Bejamin Netanyahu and thus my holy land is partners with a group of Nazis. Israel was resettled to take back our ancestral lands, to protect Jewish people, and excape anti-Semitic people and Nazis and elitists like Donald Trump and his partners. Jared Kushner is a Jew who sold out his own people and married into a white-supremicist family for money, power, prestige and (possibly) harbored bigotry of his own. At worst he goes against every tenet of Jewish wisdom/thought, and blinds our people into overlooking the endless parallels between Adolph Hitler's history/views/actions and Trump's. At best he's playing a real-life Oskar Schindler role among Trump's group and has gotten so caught up on the inside that he's become akin to an undercover police officer who BECOMES part of a crime family and hence an enemy of The People. To Israel I ask them to never forget the lessons of our past or we all will be doomed to relive them. Israel, you are currently in negotiations and agreements with a NAZI LEADER (Fuhrer Trump) going by a different title than "Chancellor." Is the holyland so willing to sell out the Jewish people to a man whose entire rise to power, life and campaign was modeled after Adolph Hitler's own views and goals?

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