POLITICS
09/29/2016 07:18 pm ET Updated Oct 03, 2016

The Supreme Court Will Decide If This Band's Name Is Too Offensive To Be Trademarked

The Slants insist their name is protected by the Constitution. But the government thinks otherwise.
The Supreme Court on Thursday agreed to hear a case brought by The Slants, who are fighting a law against trademarking offens
Anthony Pidgeon via Getty Images
The Supreme Court on Thursday agreed to hear a case brought by The Slants, who are fighting a law against trademarking offensive names.

The frontman of The Slants doesn’t like the name of Washington’s NFL team. He thinks the term is “an inherent racial slur” that is demeaning to Native Americans.

And yet Simon Tam, who is Asian American, is an unwilling ally of the team, if only legally. In separate cases, the two are battling the federal government over the cancellation of their trademarks under a federal law that forbids the registration of “disparaging” marks.

The Supreme Court on Thursday agreed to hear Tam’s case, but not because he asked. He and his band were on the winning side in a December ruling against the U.S. Patent and Trademark Office that found the law in question violated the Constitution.

“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,” said the appeals court in the ruling, which noted that denying The Slants the request for a trademark amounted to “viewpoint discrimination.” The trademark office had earlier determined “The Slants” would be offensive to people of Asian ancestry.

Looks like we made front page news at @theoregonian #theslants #theslantsvsuspto #trademark

A photo posted by The Slants (@slantsofficial) on

The Obama administration promptly appealed, urging the high court to review the ruling because, in its view, the disparagement prohibition “does not restrict any speech or restrain any form of expression,” and The Slants were free to use and advertise their name even without a registered trademark.

The law “simply reflects Congress’s judgment that the federal government should not affirmatively promote the use of racial slurs and other disparaging terms by granting them the benefits of registration,” the government said in its appeal.

But then something weird happened: Five days after the government made its move, the Washington football team ― whose own trademark had been canceled and was appealing the decision ― wanted in on The Slants’ case. 

Team lawyers filed a brief begging the Supreme Court to hear both cases together, because the issues are very similar and the justices would be well served by neatly disposing of both at the same time.

The high court on Thursday only agreed to hear The Slants’ case, and if a look at the court’s docket is any indication, it appears that the NFL team and its owner, Daniel Snyder, won’t get the same chance. The justices may very well reject their petition on Monday, when they’re expected to deny thousands of appeals that accumulated while they were on summer recess.

That should serve as a kind of consolation for Tam, who has taken great pains to distinguish his band’s name and cause from any purported justification Snyder may offer for his own team’s name.

Through editorials, the band’s website, and even a TED Talk, Tam has maintained that his band ― a self-described “Chinatown dance rock” outfit that happens to be made up of all Asian-American members ― exists to break down racial stereotypes about their ethnicity.

And if that takes dismantling a part of federal trademark law, so be it.

“The fact of the matter is that this law has been unfairly targeting minorities since it was drawn up in the 1940s, and overcoming it would be a small but important victory in the greater battle for equality,” Tam wrote last year.

The Supreme Court will hear Lee v. Tam during its new term, which begins next week.

UPDATE: Oct. 3 ― The Supreme Court on Monday rejected the NFL team’s bid to have its trademark appeal case heard alongside that of the Slants. That case is still being appealed before a lower court, which means a favorable ruling for the band could also boost the team’s chances.

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