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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RacersEdge

Was the court's decision unanimous?

Anonymous

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.

Anonymous

Yes I can finally start my band, "The Nigger Beaners". Yeah! Im both!

Anonymous

Don't forget "The Honky Kikes"

Anonymous

Or "The Chink Wops"

Anonymous

Ooh ooh ooh, yeah and the ever famous "The Sand Monkeys" yeah boy!

Anonymous

American government was never intended or designed to be "Nanny-State" - where bureaucrats perceive themselves as a parental role over us peasants.

The American model of government was designed to protect us peasants from other people and oligarchs to maximize individual freedoms - as long as our freedoms don't infringe on another person's constitutional rights.

Bureaucrats, sometimes well-meaning, assume parental authorities that they don't actually have under the U.S. Constitution or any constitutional law anywhere. The unAmerican Nanny-State was defeated and all Americans are better off with this ruling.

Anonymous

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

I don't know what you mean by "nanny-state," but the US Constitution is intended to "promote the general Welfare."

Eli Samuel Goldman

I agree with this decision for many reasons. The far-right-wing spent the entire election expressing (what can easily fall under the definition of) "hate speeches," especially the followers of the (alleged) white-spremicist(s) Donald Trump/Mike Pence/David Duke et al. The far-right caters to the corporate elite giving them free reign to sell or do anything, marketing societal-ills as a means to promote it. For instance, far-right-conservatives took the relative localized gang problems of Southern California and marketed it to country and world making emulating the gang-scene trendy. The corporation's popularized a societal I'll that arose as backlash (and that they created) and associated products such as sportswear and music to gang membership to both profit from its growth, and vilify those they profit from simultaneously. Originally sportswear in poor minority areas became popular as did sports as a symbol of a youths potential ticket to a better life among those who often were not afforded equivalent educational and professional opportunity. And while this is far less true now, marketing the gang scene after initiating the events that led to it spurred the tend of labeling those who listen to certain forms of music or wear the sports appearal the corporate right profits from selling them. They make movies simultaneously turning criminals into "cool" underheros as a message to youth, then target for criminalization the youth that emulate the highly marketed fictional figures and blame speech the corporate elite popularized in media and label the racist-element of the extreme right coined, rebadged, and/or promoted. Then the same often-extremist-religiously affiliated-corporate-funded groups criminalize their consumer base for singing/sayings/mimiking behaviors and the very monikers marketed to them by the far-right elite. The gang problem in the country started as backlash (colloquially known as the Zoot Suit Riots of 1943) to the rape of Latin American women and racially motivated beatings of latin American men by U.S.Navy men drunk and on leave. Even the Crip/Blood thing started with an impoverished sort of youth centric neighborhood-watch group (similar to the Guardian Angels) who felt disenfranchised and a target of police, rather than protected by them. Unfortunately it degraded into criminal gangs led by violent faction which resulted in the rise of people like Tookie Williams, and the further criminalization of people of color. The far-religious-right condemns forms of protected speech, profits from it, and uses it an excuse to infringe on it at the same time. This is an absurd form of hypocrisy too frequently promoted by extremist conservatives. Though I don't believe in legislating morality to a greater extent, I also cringe at giving our youth the wrong messages marketed to them about themselves. However legislating away the common person's civil rights to the point of infringement destroys the very fabric of our legal system. Rather, I believe all of us in society should educate one another on the societal affect on our fellow person. Let choose to not encourage others to use derogatory terms on ourselves and others rather than let the privleged destroy our freedoms under the pseudo-premise of protecting us. If we loose all the freedoms that ensure we are free people in a free country to those claiming to be protecting us, there will be nothing to protect. ---People who read what I wrote above may find it a bit hypocritical given things I've said on the show. But it must be understood that (though this horrible experience I am/was forced to comply with) people don't concieve of the impact of an issue unless you show them an example. All election and before I tried promoting peace, understanding, and standing up for my rights...the show mischaracterized, edited and misrepresented everything I did and said to mean something opposite or completely different to promote Trump's agenda. The very white-supremicist groups and individuals who had been targeting me that I was opposing to fight for my rights and the rights of others had portrayed me as the opposite of who I am, what I do and what I believe in. People think I'm in agreement and a supporter of Trump (quite the opposite in reality) because he used much of my intellectual property and misappled it to views I disagree with or do not endorse. Consequently I found myself the target of both Trump's hate mongering alt-right, forced into circumstances to market things I never consented to market or am not into as punishment by his corporate elite backer for my speaking-out against the campaign. And, at the same time attacked by those with much in common with me. I refused to comply with Trump's white supremicist supporters and corporate partners, and in fact spoke out against his white supremicist supporters and objected to marketing things I don't believe-in or use, ...refused to be used to marketing anything that would support his campaign at all, since I was on a show without my knowledge or consent. In fact, when I found out I was on some kind of show I fervently objected in every way possible for years. In response they simply took everything from me, portrayed me as a Trump supporting white supremicist so that my own people and those I defend would turn on me. Consequently I was attacked by both sides day and night in every way imaginable. They even made me destitute and homeless under false pretenses, and forced me into compliance by their intentional violations of hundreds of laws, having me abused and alienating me from my rights or any help or information of who or what was behind it all. They made it so that I could not earn money, then forced me into positions daily where the only way I could survive, get shelter from the elements, use a bathroom, eat, drink, or avoid physical, mental and emotional abuse 24/7 is by promoting the very products I don't use, don't like, are detrimental to my health and dietary needs, etc. Any time I failed to comply I was starved, abused, harassed and terrorized by law enforcement and forcibly kept outside moving with bloody/sore/frostbitten feet in icy rain, snow, tornados/storms, fed foods as my only sustenance that would inflame my physical disability, cause me to dedicate on myself and often put me close to death. They used emergency services, police and business personnel to harrass, criminalize, Abuse, keep me sleep deprived etc. From the outside it seemed I refused medical treatment, but they used these services in the past to do harm (unbeknownst to the public) I cannot trust medical treatment in this state or anything else. I was want to leave this state for safety and have been trying for THREE YEARS. They make everything seem an accident or for the show to cover-up thousands of crimes committed by the show against me. I had been try to take legal recourse, gain information, or get help for years, and excape (what I now know was all done for a show). I've even wanted to leave my country just to get away from Donald Trump's white supremicist follower who destroyed my life and tried end my life, or imprison me under the false pretense that I was a willing actor on a show. When I spoke about slavery I was trying to make people watching show (under the wrong belief they were hearing seeing unedited footage 24hours a day) that I personally was/am LITTERALLY not figuratively a slave...an endentured servant on a show I didn't know I was on and do not consent to be on.they simply put me in as many kinds of danger as they could thiñk-up every day and night in one way or another for years, first in Vegas then for now six years in Oklahoma. They built a show around violating my rights, terrorizing me into compliance, physically, mentally and emotionally abusing me, and marketing every word, idea, and expression I have to the world while pitting people against me and forcing me to defend myself...and until the last 2 1/2 + years I didn't even know what was happening or why. Donald Trump's white supremicist supporters characterized me as a terrorist for wanting to leave my own country (the USA) the birthplace of my forefathers and mothers to get away from Donald Trump's dangerous white supremicist (alt right) nutcase violent supporters!!! .....Since nothing I do turns off The Show and I cannot escape it, it's actors, and have been erroneously vilified worldwide for things that are not true about me, as well as had all my real property and Billions and Billions of dollars in intellectual property stolen from me, I use the show that won't go away to try and educate as well as be politically active. However, I've been though so much daily abuse for so many years now that for years id prefer death over living in Oklahoma. And no I don't want to die. It's just preferable to living in white supremicist Oklahoma on a show designed to be like I imagine living in hell would be like 24/7/365. Honestly I now hate the country I once loved more than life itself, the USA, my home. Donald Trump and his white-supremicist cabinet and the alt-white-fake-conservatives have made me realize that if I live I never want to come back to my home, the birthplace of hundred and hundreds and hundreds of years of my ancestors. I want to take my children and leave this white-supremicist-corporate-owned country forever. I once wanted to join the military and Rick my life for the USA, and defended the USA in any conversation. Now I'm ashamed that I was born here and I realize the USA no longer exists. It's been replaced by a racist-antisemitic-corporate overlord and financial-elite ruled tyrannical aristocracy intent on destroying any free peoples of the world.

Harlan Leys

A piece of advice: break up your comments into paragraphs. Makes it easier to read.

What 'show' are you referring to?

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