Lost in the welter of stories about sex tapes and the presidential election this week was the news that a very important First Amendment case is on its way to the Supreme Court. The case, a trademark dispute involving a band called The Slants, could determine the future of the Washington Redskins’ trademark. The case is a reminder that the Supreme Court still has a vacant seat and that our most precious Constitutional freedoms hang in the balance.
If you’re looking for the full background, I wrote up the case last December in this post, but here is the nutshell version: a bunch of Social Justice Warriors in the U.S. Government want to claim the ability to deny you a trademark law if they find your trademark “disparaging.” And thanks to a landmark victory in the Federal Circuit won by Ron Coleman — partner at Archer & Greiner and the author of the Likelihood of Confusion blog — the government’s SJWs no longer have that power.
The quick and dirty background is this: The Slants is a rock group consisting of Asians. They took on the name “The Slants” to “own” the term, which is commonly thought to be derogatory towards Asians. And then the government told them that they could not do that and still claim federal trademark protection. Like the “Redskins” trademark, the government invoked a provision of trademark law that prevents registration of “disparaging” marks. I turn the mic over to Eugene Volokh at the Washington Post:
Based on that provision, the Patent and Trademark Office barred the registration of THE SLANTS (I use all-caps for this in this post, to follow trademark opinion style), a trademark used by Simon Tam’s Asian American musical group of that name. The PTO has famously canceled the registration of REDSKINS. And it has done the same for many other marks: STOP THE ISLAMISATION OF AMERICA, THE CHRISTIAN PROSTITUTE, AMISHHOMO, MORMON WHISKEY, KHORAN for wine, HAVE YOU HEARD THAT SATAN IS A REPUBLICAN?, RIDE HARD RETARD, ABORT THE REPUBLICANS, HEEB, SEX ROD (apparently some sort of reference to the Red Sox), MARRIAGE IS FOR FAGS, DEMOCRATS SHOULDN’T BREED, REPUBLICANS SHOULDN’T BREED, 2 DYKE MINIMUM, WET BAC/WET B.A.C., URBAN INJUN, SQUAW VALLEY (in part), N.I.G.G.A. NATURALLY INTELLIGENT GOD GIFTED AFRICANS, “a mark depicting a defecating dog … (found to disparage Greyhound’s trademarked running dog logo),” “an image consisting of the national symbol of the Soviet Union with an ‘X’ over it,” and more.
Thanks to Ron Coleman’s pro bono work for The Slants, the “disparagement” provision has been found unconstitutional by the Federal Circuit Court of Appeals. I quote from the court’s decision:
The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional. Because the government has offered no legitimate interests justifying § 2(a), we conclude that it would also be unconstitutional under the intermediate scrutiny traditionally applied to regulation of the commercial aspects of speech.
This is where I stand up and start singing the national anthem.
That the government cannot deny one applicant a trademark because it is disparaging to a group, while awarding another applicant a trademark that praises the same group, should be an obvious conclusion. Preventing viewpoint discrimination by the government is at the heart of the First Amendment.
Nevertheless, the issue is now on its way to the Supreme Court, where four hard-left Justices are tenuously balanced by four judicial conservatives who display varying degrees of fidelity to the Constitution.
And one seat remains open. The election will determine who fills that seat, and may determine the future of the First Amendment in this and other cases.
FULL DISCLOSURE: I should add that Ron and the excellent Bruce Godfrey of Jezic & Moyse LLC have represented me pro bono in the past and have always done an excellent job. I am forever grateful to them — and I look forward to Ron arguing in the Supreme Court!