The First Amendment scored a huge victory on Monday.
In a majority opinion, the Supreme Court ruled that seemingly offensive trademarks are protected under free speech. The ruling strikes down the 1946 Lanham Trademark Act – a law prohibiting trademark names that “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The case was brought forward by the Slants – an Asian American rock group that sought to trademark their name, but was denied. In 2011, the trademark office said registering the Slants’ name would violate the 1946 Lanham Trademark Act.
While losing the first legal rounds, the Slants scored a victory when the U.S. Court of Appeals for the Federal Circuit ruled the law violates the First Amendment’s guarantee of free speech. The argument made its way to the Supreme Court where it ultimately resulted in the Lanham Act’s ouster.
In a Facebook statement, band founder Simon Tam celebrated the victory:
“After an 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.”
Obviously, the ramifications of this decision go well beyond the Slants.
Other organizations will now be able to seek trademark protections for any sort of wacky, controversial names. Most notably, this decision is a huge boost to the Washington Redskins football team and their fight to regain their trademark registration – which was revoked in 2014 under the exact same disparagement clause.
The Washington Redskins were so invested in this court case, in fact, the team filed an amicus brief in support of the Slants. Their attorney issued her own statement following the decision:
“The team is thrilled with today’s unanimous decision as it resolves the Redskins’ long-standing dispute with the government,” Redskins attorney Lisa Blatt said in a statement. “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.”
This decision is a major win for the First Amendment and for free speech in general. Who is to say what speech is offensive and what is not? In the case of the Washington Redskins, our former social justice warrior president (Barack Obama) insisted the name was offensive to Native Americans – despite polls indicating as many as nine-out-of-ten Native Americans not taking any offensive to it. In regards to the Slants, the Asian American rock group claimed the band name was a “badge of pride.”
In delivering the majority opinion, Justice Samuel A. Alito Jr. dropped the best line: “Giving offense is a viewpoint.”
That’s exactly the point. Offense is nothing more than a viewpoint. A viewpoint differs from person to person. We cannot (and should not) try to regulate the First Amendment by what may offend others. When making decisions in this arena we must err on the side of free speech.
Some are concerned of the consequences this decision may bring about. An intellectual property lawyer expressed her worries. “It seems this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful marks,” said Lisa Simpson. “While this may be the right result under the First Amendment and the principles of free speech that are foundational to our country, it seems the responsibility will now pass to the public.”
Absolutely right. This responsibility rests in the hands of the public, not the government.