The Government’s Trying to Sell a New Slant on the First Amendment. We’re Not Buying It. (Updated)
& Samia Hossain, William J. Brennan Fellow, ACLU Speech, Privacy, & Technology Project
(12/16/16): We filed a friend-of-the-court brief with the Supreme Court supporting the band’s case in coalition with five Asian-American community and advocacy groups: the Asian American Legal Defense and Education Fund, the Asian Pacific American Network of Oregon, the Chinese American Citizens Alliance (Portland Lodge), the Japanese American Citizens League, and the Oregon Commission on Asian and Pacific Islander Affairs. Read the brief here.
(9/29/16): The Supreme Court announced that it will hear the case.
(12/22/15): Victory! The Court for the Federal Circuit ruled today that the Lanham Act, which was invoked to deny The Slants a registered trademark, does indeed violate the First Amendment by conditioning government benefits on the viewpoint of a trademark seeker. As the court stated, “It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys.” Indeed – it should be up to the public, not the government, to drive bad ideas from the marketplace.
When you walk down the aisles of a supermarket and choose between a CokeTM or a PepsiTM, what do those little superscript “TM”s mean to you? Are they corporate marks intended to ward off competitors, or are they instead tiny little imprimaturs of the government’s approval of that particular corporate message? We don’t know anyone who would pick the latter.
Now consider The Slants, an Asian-American band based in Portland, Oregon. The Slants specialize in “Chinatown dance pop” and have released albums entitled “Slanted Eyes, Slanted Hearts” and “The Yellow Album.” Simon Shiao Tam, The Slants’ founder and bassist, has explained that the band selected its name in order to “take on these stereotypes that people have about us, like the slanted eyes, and own them.”
The Slants applied to register their name as a trademark to get the considerable legal and financial benefits that registration provides. The government denied them a trademark based on the Lanham Act, a law that allows the U.S. Patent and Trademark Office (PTO) to deny registration to trademarks that it determines to be “disparag[ing],” or otherwise “offensive” or “immoral” to a “substantial composite” of an affected group. The Slants appealed that decision to the U.S. Court of Appeals for the Federal Circuit, and we filed an amicus brief saying that the band has every right to register its name. Today, the ACLU has the opportunity to stand up in court to argue that free speech position.
We think the First Amendment prevents government from Googling a band, deciding that their private speech is “disparaging,” and then denying them a government benefit on that basis. That’s because the government never has the right to distribute benefits, or not, based on approval or disapproval of someone’s message. That means that the government can’t offer tax breaks only to those who put pro-NAFTA signs in their yards, or only send out the fire department when the person who owns the house on fire voted for the fire chief. The principle also means that government can’t offer a system of immense trademark benefits only to those whose speech isn’t critical or “immoral.” Yet, that’s exactly what the Lanham Act permits. And we think that’s unconstitutional.
Taking into account that the band members came up with the name and the concept behind their music, we think the name “The Slants” as it applies to the band is quite obviously the band’s private speech — and emphatically not a name that expresses a government position. Just like that can of soda.
The government, oddly, disagrees.
The government’s stance in this appeal is that trademark registration is government speech, and as a result, the First Amendment doesn’t apply (it only protects private expression from government interference). That’s like saying that when you buy a PepsiTM, the soda is government-sponsored because the brand has a trademark.
The government’s position rests on the Supreme Court’s recent ruling in Walker v. Sons of Confederate Veterans. In that case, the court held that Texas’s specialty license plate program, which allowed private groups to submit and fund license plate designs, was “government speech” and thus the state could deny plate designs. While we were in no way happy about a Confederate flag license plate, we were concerned that the court might issue a ruling that would broadly allow the government to deny benefits to speakers it disapproves of — like The Slants.
Even so, it’s clear that Walker does not govern this case. The Supreme Court’s narrow decision was based on the fact that license plates have traditionally been used by states to transmit their own messages. For example, Texas issues specialty plates that say “Keep Texas Beautiful” and “Read to Succeed.” Furthermore, license plates are often closely associated with the state, namely because they always carry a state’s name. And, like dollar bills and IDs, the state actually prints and issues license plates.
But those things are not true in the case of trademark registration. The government has not traditionally spoken through registered trademarks, and the public does not generally attribute trademarks to the government. If that were the case, every time we saw a Hershey bar or Kleenex box, the Star-Spangled Banner would ring in our ears. And, trademarks such as “Give Jesus a Chance” and “Everybody Must Get Droned” — if indeed considered government messages — would surely raise more than one eyebrow. While it is true that the government maintains some control over registering trademarks, it can’t be right that by making a list of private speech, the government suddenly gets to claim the speech as its own and thus deny constitutional rights to private speakers.
As this case demonstrates, the government’s position leads to some absurd results. The Slants are Asian-American — the very group that the PTO argues would be disparaged by the band name. They chose their name to reappropriate a racial slur used against their community, in order to remove the power of that term. The band’s response to the government’s position is understandable exasperation: “It was like banging our head against the wall, trying to convince someone that we were not offensive to ourselves.” In applying a law that is supposedly intended to protect minorities from disparagement, the government has instead denied members of those very communities the trademark benefits they seek. Of course, those are exactly the kinds of absurd results we can expect when we let the government play speech police.
By arbitrarily re-naming private speech as its own, the government is sidestepping its requirements under the First Amendment — particularly, that it cannot allocate benefits based on one’s private speech based on what’s being said. We believe that, whether we agree with your speech or not, the Constitution protects all our rights to express ourselves equally.
In short, the government can’t rewrite the rules of the game — it has to play by them. The Slants, who we think are pretty good with words, put it best:
“This is much bigger than our band. It’s about the principle. This is about doing what is right — not just for us, but for all marginalized communities . . .”