In a statement released by their publicist, bassist and band founder Simon Tam says that after the “excruciating legal battle that has spanned nearly eight years, we’re beyond humbled and thrilled to have won this case at the Supreme Court. 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. During the fight, we found the (US Patent and) Trademark Office justifying the denial of rights to people based on their race, religion, sexual orientation and political views, simply because they disagreed with the message of these groups. To that end, they knowingly used false and misleading information, supported by questionable sources such as UrbanDictionary.com, while placing undue burdens on vulnerable communities and small business owners by forcing them into a lengthy, expensive and biased appeals process. The Supreme Court has vindicated First Amendment rights not only for The Slants, but all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination.”
The USPTO had denied the Slants’ trademark because it deemed the term disparaging to the Asian American community, ignoring that the members of the band are themselves Asian Americans. In previous court appearances, Tam often found himself unable to speak on behalf of his band and their decision to use this particular name, instead watching teams of Caucasian lawyers on both sides discuss what was and was not considered inflammatory or racist speech. He’s often noted that the band and its its name have strong support in the Asian American and Pacific Islander communities, unlike the Washington Redskins, currently engaged in their own legal battle over the team’s trademark. The football team had tried to convince the Supreme Court to hear their case instead of The Slants but they were denied.
USPTO had used Section 2A of the Lanham Act, an old and often overlooked or forgotten piece of US law, to justify rejecting The Slants’ application for trademark.
“When I started this band, it was about creating a bold portrayal of Asian American culture,” Tam says in the statement released after the ruling was released. “The establishment of an Asian American band was a political act in and of itself, even though we never considered ourselves as a political group. However, as we continued writing music about our experiences, we realized that activism would be integrated into our art as well. I’m proud our band members have helped raise over $1 million for issues affecting Asian Americans, that we’ve worked with dozens of social justice organizations and that we could humanize important issues around identity and speech in new and nuanced ways. So we became part art and part activism.”
In the ruling, Alito maintains that “Contrary to the Government’s contention, trademarks are private, not government speech. Because the ‘Free Speech Clause… does not regulate government speech’…the government is not required to maintain viewpoint neutrality on its own speech. This court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.”
“The disparagement clause denies registration to any mark that is offensive to a substantial percentage of the members of any group,” Alito writes. “That is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint.” Pointing to another case, Alito says that the “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”
This is a huge victory not just for The Slants but for any group trying to secure trademark registration and protections for its name or cause.
Does it have downsides a drawbacks? Probably.
Many publications are pointing to the Washington Redskins, a team that asked the Supreme Court a year ago to consider its trademark petition and case against the USPTO instead of the Slants. The team lost its trademark protection in 2014.
The Slants understand that many will want to link the case and see the two incidents as being on equal footing, but there’s a key difference: The Slants have strong and widespread support for their name among Asian Americans and Pacific Islanders; the NFL team cannot say they have the support of Native American communities.
“Nothing in the opinion undermines the decision of the (USPTO) or the District Court that the term ‘redskin’ disparages Native Americans,” Jess Witten, an attorney for Native Americans who has been fighting against the football team’s name, told the Washington Post.
“The Supreme Court vindicated the team’s position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government’s opinion,” said Lisa Blatt, an attorney for the football team.
The team’s controversial owner, Dan Snyder, released a statement Monday saying simply, “I am THRILLED. Hail to the Redskins,” the Post reports.
When asked by the New York Times if he’d received any note of congratulations or thanks from Snyder or anyone affiliated with the football team, Tam said no. “But if I ever did, I’d be happy to send them some legal bills.”
For Tam and the band, which just wrapped up a tour that saw them performing before and speaking with law students across the United States, as much as they wanted to make a name for themselves and reclaim a term for their community, the full story doesn’t begin or end with The Slants.
“It’s a win for all marginalized groups,” Tam told the Times. “It can’t be a win for free speech if some people benefit and others don’t. The First Amendment protects speech even that we disagree with. You can’t say you want to shut down the conversation for other people because that doesn’t advance progress. No one builds better communities by shutting people out.”
He has previously pointed out in many interviews that the USPTO had issued and protect the names of other groups, mainly backed by Caucasians, with offensive names, including the Ku Klux Klan. In fact, the USPTO has even approved trademark applications for other groups that have included the word “slant” or “slanted” in their names or logos—the difference being those groups were owned or organized by Caucasians.
There have been several comments on social media agreeing with this mindset, that even if it means the Redskins can retain their name and regain their trademark, a victory for the Slants is ultimately the right decision by a court that continues to uphold and keep nearly sacred the protections embodied by the First Amendment.
As Sports Illustrated points out, “It is worth noting that the Redskins are not completely dependent on federal trademark law to repel counterfeits and to protect their brand name. The team enjoys other, albeit weaker, legal protections to accomplish those same goals. Those other protections can be found in states’ laws and in licensing contracts between the Redskins and businesses that produce merchandise and apparel with ‘Redskins’ on them. Still, losing federal trademark registration would be economically damaging to the Redskins. The registration supplies the strongest source of trademark protection for the team.”
The football team’s case was shelved by both the Supreme Court and lower courts pending the ruling in The Slants’ case. Don’t be surprised if it surfaces again sooner rather than later.
The band also made an appearance on The Daily Show, discussing their case:
http://www.cc.com/video-clips/vefrhm/the-daily-show-with-trevor-noah-the-right-to-discriminate-against-yourself
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