This week’s Matal v. Tam (formerly Lee v. Tam) Supreme Court ruling serves as a reminder that free speech is a two-way street. It also suggests the value of a sympathetic litigant, at least in terms of public response.
Many rallied behind Simon Tam and his rock band, The Slants. The band members, who are all Asian American, sought to reclaim and diffuse a historically derogatory term by naming their band “The Slants.” The band first tried to register THE SLANTS with the Trademark Office in 2010. The Office rejected the application under the disparagement clause of the Lanham Act. 15 U.S.C. 1052(a). The band appealed to the Trademark Trial and Appeal Board, and later to the Federal Circuit, which ultimately led to review by the Supreme Court.
The resulting narrative told the story of a group of young musicians pushed out by a bureaucratic system and an antiquated law dictating morality. Tam and his band were the good guys. There was no public outcry calling for the band to change its name. They were not viewed as insensitive or bigoted, at least in part because Tam and the other band members are Asian American and thus belong to the group presumably disparaged by the term. For many, it was easy to rally behind the argument that The Slants have a First Amendment right to obtain federal trademark protections for their band name. The Supreme Court’s decision that “the disparagement clause violates the Free Speech Clause of the First Amendment,” thus removing The Slants’ block to registration, was a well-received public victory. Matal v. Tam, No. 15-1293, 2017 WL 2621315, at *20 (U.S. June 19, 2017).
However, as many have since pointed out, this decision was a win not only for The Slants, but for anyone seeking federal registration of an otherwise disparaging mark.
In 2015, a federal district court affirmed the USPTO’s cancellation of THE REDSKINS registered trademarks. At the time, the district court’s decision that “the federal trademark registration program is government speech and is therefore exempt from First Amendment scrutiny” was lauded as a moral victory. Pro-Football, Inc. v. Blackhorse, 112 F.Supp.3d 439, 452 (E.D. Vir. 2015). The New York Times Editorial Board reported, “Slurs Don’t Deserve Trademark Protection.” The Supreme Court’s First Amendment decision means the NFL team will now be able to recover their federal registrations for THE REDSKINS.
The Slants and The Redskins each wanted federal trademark protections for racially derogatory terms, but presented entirely different political positions and applicants.
The long-fought battle over cancellation of the Redskins marks began with a group of Native Americans arguing disparagement. In this narrative, the team’s owners were often depicted as the villains callously profiting from a racial slur. The Navajo Nation filed an amicus brief in support of the decision to cancel the trademarks. Media outlets and NFL announcers refused to use the team’s name in their reporting. While many also saw The Redskins as leading the charge in the fight against political correctness, The Redskins undeniably faced stronger public opposition than The Slants.
The differences in these cases, and in the trademark applicants themselves, serve as a reminder that free speech for one necessarily means free speech for all. Perhaps nothing underscores this point better than the New York Times Editorial Board’s recent statement that they have “reconsidered [their] underlying position” with respect to the team’s name following the Tam decision.
While many will surely still advocate for a new team name, if we are to allow The Slants to enjoy the benefits of federal registration, we must allow The Redskins–and others–the same opportunity.
Justice Kennedy said it best: “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.” Matal v. Tam, No. 15-1293, 2017 WL 2621315, at *25 (U.S. June 19, 2017) (Kennedy, J. concurring).