On Wednesday, the Court heard arguments in Lee v. Tam, a case that involves not a major league sports team but a largely obscure Asian American dance-pop band called The Slants. The band’s founder, Simon Tam, chose the old anti-Asian slur as an act of re-appropriation, not unlike the way some African Americans people who retook the “N-word” from racists. Still, a slur is a slur, and U.S. Patent and Trademark Office declined to grant Tam a trademark because the law bars trademarking any language that “may disparage” a person or group.
That’s similar to what happened to Washington’s football team in 2014, when the PTO revoked the team’s trademark for the same reason. That decision is under appeal, and the Redskins organization tried, and failed, to join its case to this one. (It filed an amicus brief instead.)
If the oral arguments in Lee v. Tam are any indication, the NFL team will win without ever going to the Supreme Court.
The case is straightforward. Tam says that the PTO is violating his First Amendment rights, engaging in what lawyers call “viewpoint discrimination.” The government replies that no one is stopping him from calling his band The Slants—the PTO just isn’t granting him a trademark.
At oral argument, however, justices from across the ideological spectrum seemed unpersuaded by anything the government had to say.
First, Justice Kennedy noted that the copyright law has no such provision, and after further questioning from Justice Alito, the government’s lawyer agreed that it would violate the First Amendment to deny someone a copyright for offensive or disparaging speech. What’s the difference? The lawyer was left guessing as to Congress’s intent, an argument which persuaded nobody, though Justice Ginsberg agreed that trademark is a more robust government program and so perhaps the same rules don’t apply.
Next, Justice Ginsberg asked whether a slightly different phrase—“Slants are Superior”—would be banned, and the government lawyer said it would not. That seems crazy. First, it’s closer to what Tam himself actually means. Second, it still has the offensive word in it. Third, as Chief Justice Roberts noted, superior to whom? To say one group is superior may be positive, but it implicitly denigrates others.
All this points to the fatal flaw in the law itself, which is its subjectivity. On the surface, it’s clear enough: the Lanham Act prohibits the government from granting a trademark to “matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
But in practice, the application of this law has been uneven. “The Slants” is another good example. Obviously, Tam is using the term not to disparage Asian Americans, but to call attention to their disparagement by others. How is the PTO really meant to adjudicate these kinds of claims?
And why, exactly? Of course, it’s offensive to imagine someone trademarking hate speech, but is it really the government’s place to confer commercial advantages on good speech, and disadvantages on bad speech?
This isn’t like the recent case of the State of Texas refusing to make license plates with Confederate flags on them. There, it really looked like government speech, even though technically it was not. Here, surely no one thinks that a TM symbol means that the government is endorsing Coca Cola, the Redskins, or The Slants.
Justice Breyer asked this directly: “What purpose related to trademark objectives does this serve?” And the only answer he got was “to prevent the user of the product from being distracted from the basic message, which is, I made this product.” As Justice Breyer said next, that’s true of “perhaps 50,000 examples” of the trademark “distracting” consumers in that way.
As Justice Kagan said when the lawyer tried desperately to wiggle out of it, “Mr. Stewart… please.”
Of course, one never knows why a justice takes a certain line of argument, but when Justice Kagan and Justice Alito agree that you’re wrong, you are probably going to lose. And of course, Justices Kennedy, Ginsberg, Sotomayor, and Chief Justice Roberts did too.
To be sure, the justices hammered Tam’s lawyers as well. The lawyers took a maximalist free-speech position that said that the PTO couldn’t disallow any phrase at all, even one that lied about a competitor. The justices rightly tore that apart; purely commercial speech is not strongly protected by the First Amendment. Otherwise we couldn’t have libel laws, or cases for consumer fraud.
More importantly, the justices noted that Tam could still sue if someone else used the name The Slants—he just couldn’t register the trademark and get the full protection of doing so. Trademark is a limited government program, not a right, and it’s not a First Amendment violation to bestow it only on some kinds of speech. The government limits speech all the time for participation in government programs; if you want to join the government Shakespeare Festival, you can’t disparage Shakespeare.
Yes, Tam’s (and the Redskins’s) First Amendment rights are restricted, but First Amendment rights are often restricted in the name of government policies. As the proverb goes, you can’t shout ‘fire’ in a crowded theater. Nor can you incite violence, or knowingly publish lies, or use hate speech.
But ultimately, the justices came back to the point that the government couldn’t really address: which is that unlike a Shakespeare festival, the Lanham Act exists to protect consumers and property-holders, period. Its broad carve-out for disparaging speech, which the PTO cannot enforce in a consistent way, excludes too much and accomplishes too little.
There are other remedies for disparaging speech. If the term “Redskins” or “Slants” is being used to defame a group in violation of the law, it should be a matter for the civil rights division of the Justice Department. It’s strange that the Patent and Trademark office is being charged with this mission.
In the case of the Redskins, advocates have used commercial pressure and moral pressure to urge the team to change its name. They haven’t succeeded so far, and in the new backlash against “political correctness” they may not succeed for a while. But they probably will succeed eventually, just as Trumpism will fail eventually. The population is still growing more diverse, more millennial, and more liberal, notwithstanding the blowing of the political winds.
For the PTO to deny Tam’s trademark and rescind the Redskins’s one is a kind of back door. An agency whose mission is about commerce and intellectual property is now in the business of civil rights, short-circuiting the agencies and actors whose mission that is. Whatever side of the Redskins debate you’re on, surely we all agree it isn’t really about trademark law.
Based on today’s arguments, the Supreme Court seems to agree.