The unanimous decision Monday will also likely preserve the trademarked and controversial name of the Redskins, Washington’s NFL team, and help the Seattle band Thunderpussy trademark its name.
WASHINGTON — The Supreme Court extended trademark protection to words and names that may be offensive, ruling Monday that the First Amendment right to free speech allows an Asian-American band from Portland, Oregon, to call itself the Slants.
The unanimous decision will also likely preserve the trademarked and controversial name of the Redskins, Washington’s NFL team, and could also help Thunderpussy, an all-female rock band in Seattle, trademark its name.
The law at issue denies federal trademark protection to messages that may disparage people, living or dead, along with “institutions, beliefs or national symbols.” The high court Monday struck down part of the 1946 federal law.
The justices said this provision violates “a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend,” said Justice Samuel Alito Jr. He said trademarks are “private speech,” not the government speaking. And as such, the law may not punish words or expressions simply because they are offensive.
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“We have said time and time again that the ‘public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,’ ” Alito said in the case of Matal v. Tam.
Slants founder Simon Tam tried to trademark the band name in 2011, but the U.S. Patent and Trademark Office denied the request on the ground that it disparages Asians.
The examiner cited dictionaries that defined “slants” or “slanteyes” as a derogatory or offensive term.
The Slants said they did not intend to disparage anyone. Instead, they said, they sought to adopt and reform a disparaging term about Asians, much as some gay people have embraced the term “queer.” Tam said he chose the name to make fun of a word that had been used as a slur against Asians, and thereby to “drain” it of any derogatory impact.
Thunderpussy, an all-female rock band from Seattle, has made a similar argument about its name, saying it wanted to take ‘pussy’ off the marketplace as a pejorative term. Its trademark application also was denied, with the Patent and Trademark Office calling its name “immoral” and “scandalous,” according to the band’s attorney.
The government has applied the law inconsistently when faced with trademarks based on ethnic slurs. It has, for instance, both registered and rejected trademarks for the terms “Heeb,” “Dago,” “Injun” and “Squaw.”
Tam insisted he was not trying to be offensive, but he wanted to transform a derisive term into a statement of pride. The Redskins also contend their name honors American Indians, but the team has faced decades of legal challenges from Indian groups that say the name is racist.
Tam said the members of the Slants were “beyond humbled and thrilled” with the ruling.
“This journey has always been much bigger than our band: It’s been about the rights of all marginalized communities to determine what’s best for ourselves,” he said.
Benjamin Kerr, who represents Thunderpussy, sees the court’s decision as a win for his clients, too.
Without a trademark, Kerr said, it’s easy enough for someone to come along and rip off an artist’s name or sound. He described this action, “trademark dilution,” as being similar to knock off designer shoes.
Thunderpussy isn’t yet in the clear — Kerr still has to check in on the appeal of their trademark denial, but he feels the Slants’ win will set the groundwork for his client’s approval.
In 2015, a federal appeals court in Washington found the law’s disparagement provision unconstitutional in a case brought by the Slants. Writing for the majority in a 9-to-3 decision, Judge Kimberly Moore of the U.S. Court of Appeals for the Federal Circuit said that while some of the rejected trademarks “convey hurtful speech that harms members of oft-stigmatized communities,” the First Amendment “protects even hurtful speech.”
While the justices all agreed on the outcome, they split in their rationale. Alito rejected arguments that the government has an interest in preventing speech that is offensive to certain groups.
“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate,” Alito said in a part of his opinion joined by Chief Justice John Roberts and Justices Clarence Thomas and Stephen Breyer.
Writing separately, Justice Anthony Kennedy stressed that the ban on disparaging trademarks was a clear form of viewpoint discrimination forbidden under the First Amendment.
“A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all,” Kennedy said in an opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Justice Neil Gorsuch took no part in the case, which was argued before he joined the court.