(Warning: this diary, of necessity, contains language which may offend.)
As Simon Shiao Tam explained it to the Supreme Court, when he formed a rock band in 2006, his “purpose was not just to play music. He also intended the band to be a vehicle for expressing his views on discrimination against Asian-Americans. To that end, he recruited Asian-American band members, and he called the band The Slants ... We want to take on these stereotypes that people have about us, like the slanted eyes, and own them.”
The band wanted to trademark the name—which is crucial if you want to make sure no one else can sell your merchandise, for instance. Problem was, there’s this thing in the trademark law that says you can’t register a trademark for something that “may disparage ... persons, living or dead … or bring them into contempt, or disrepute.” And their trademark application was denied on that basis back in 2011, with various examiners and later courts holding that the term was “disparaging to persons of Asian descent,” “likely offensive to a substantial composite of people of Asian descent,” etc.
Today, the Supreme Court of the United States was unanimous in holding that this nondisparagement policy was unconstitutional, though the Court was divided 4-4 on some of the reasoning. They agreed unanimously that the federal government couldn’t defend this policy on the ground that its granting a trademark was like its adopting the trademark (a “retweet does not equal endorsement” theory). But what made it unconstitutional?
Four justices (Alito, Roberts, Thomas, and Breyer) went on to find the statute unconstitutional because even as commercial speech, the First Amendment protects “the freedom to express ‘the thought that we hate’” from government sanction:
The disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.
The other four justices (Kennedy, Ginsburg, Sotomayor, Kagan) instead objected because the statute constituted viewpoint discrimination—that trademark law cannot be in the business of “mandating positivity,” but rather:
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. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
Or, as Tam’s lawyers put it in their brief, you can’t have a law that says that “Celebrasians” and “Asian Efficiency” can be trademarked, but not “The Slants.” Or “National Republican Senatorial Committee,” but not, “Republicans Shouldn’t Breed.”
For whom is this particularly good news? John McCain Daniel Snyder, the owner of a professional football team in the Washington D.C. area, whose nickname and trademark had been facing a similar court challenge.
(The case was argued before Justice Neil Gorsuch’s confirmation.)