The Government’s Trying to Sell a New Slant on the First Amendment. We’re Not Buying It. (Updated)

Updates:

(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 . . .”

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Anonymous

This case, like the offensive Washington sports team are not about freedom of speech , they are both about intellectual property. The government has no problem with either group using either name, it will not, however, extend regulatory protections to them when used in commerce.
By allowing a trademark to registered and applied to a band, team or piece of merchandise does not secure anyone's right to expression. Quite the reverse: it in fact limits the speech of others by restricting the use of these terms by anyone not the owner.
Oh, and by the way, naming a team with a racial epitaph is offensive. Even if the team were called the 'Native Americans', it would still be offensive to mock a culture (whom we nearly wiped out) by putting what is basically a caricature on these guys helmets and sending them out to compete with other teams such as the Bulldogs or whatever. It's simply the linguistic version of blackface.

Anonymous

To all the people asking about the ACLU's stance, Re: The Redskins--you haven't done a very close reading of this text. They are not simply about a protecting a name which could be seen as disparaging; context is definitely key.

In this case, what could be seen as a negative and prejudicial term ("slant eyed") is instead being used by the very population it would normally be used against. In other words, they are RE-appropriating the word to shed light on what it means, how people use that term, and turning it on its head to empower themselves.

In the case of the Redskins football team, this couldn't be further from the truth. The team is not made of Native Americans. The name was not created by Native Americans. And support for that name currently among Native Americans is 0. It IS disparaging towards a minority people: Native Americans.

Likewise, if the Slant Eyes were a group of white kids who wanted to use the name, the ACLU's response would have been very different.

Reappropriator

I would hope not! Speech is speech regardless of who is speaking it and I thought that was ACLU's principle here.

It certainly is an easier sell when the "re-appropriation" of a term regarded as offensive is claimed by the group against whom it is supposed to offend. But how judgmental is that? Who is going to decide whether you have a right to disparage a group that you say you are associated with? Who knows if Redskin fans aren't being sarcastic?

Discretion in case selection is always an issue, but I would hope the overriding policy of the ACLU would be to support the speech regardless of the speaker.

Anonymous

The ACLU filed an amicus brief in support of the redskins as well. Civil libertarians don't generally look at "context" in free speech cases the way you described.

Anonymous

I don't think you did a very close reading either. The band's name is "The Slants." At this point I can't decide if you're trying to be surreptitiously offensive or not.

Jamie

Ask yourself - Are the Washington Redskins set up by people of a Native American background to reclaim a vulgar and disparaging term?

Therein lies the difference between that case and this one.

David

Yankee / Yankee Doodle were disparaging names for the colonists. They owned it and it became a badge of honor. Let the Asians do the same with Slants if they want to. Seems obvious to me.

HawkAtreides

A few problems:
1) It's not the "TM" symbol, but the circled-R that is indicative of a registered trademark. Anyone can use the TM or SM mark without registration, including this band.

2) Regardless of the appeals court's claim, SCOTUS has upheld the part of the law prohibiting the use of disparaging or scandalous terms in registered trademarks as not infringing on First Amendment rights because it does not prohibit the speech, only the government's obligation to assist in protecting it (for example, a holder of a registered trademark can provide an order to Customs to bar import of infringing products).

3) None of this beyond the court's specific holding is "new" - trademarks have been denied to groups such as "True Niggaz Only Records" and the "A Nigger for Life" story series in which members of the community were using the terms in the same "reappropriation" context you describe here. This has been going on for quite a long time, and the controlling statutory law isn't exactly nascent. Don't spin this as somehow being a new development beyond this court's specific finding.

Anonymous

For everyone who seems to have trouble with the googles:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/06/aclu-argues-that-cancellation-of-redskins-trademark-violates-the-first-amendment/

YMO Fan

A band did this like 40 years ago, Yellow Magic Orchestra. I'm not sure they ever got a trademark certification in the USA though.

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