Brief Fact Summary.
Simon Tam, the leader of “The Slants,” chose this band name to reclaim and take ownership of stereotypes about people of Asian ethnicity. Tam, an Asian descent, sought federal registration of “The Slants” but an examining attorney at the Patent Trademark Office rejected the request, finding that people may find the term offensive. The examiner relied on the fact that many dictionaries define ‘slants’ as a derogatory or offensive term. Tam contested the denial of registration before the examining attorney and PTO’s Appeal Board but to no avail.
Synopsis of Rule of Law.
The First Amendment prohibits Congress and other government entities and actors from “abridging the freedom of speech.”
While in some contexts the government must accommodate expression, it is not required to assist others in funding the expression of particular ideas, including political ones.View Full Point of Law
A dance-rock band sought to apply for federal trademark registration of the band’s name, “The Slants.” “Slants” is a derogatory term for Asian descents and all members of the band are Asian-Americans. The band members believed that by taking slur as the name of their group will help to “reclaim” the term and remove its negative implication, but the Patent and Trademark Office rejected the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage, or bring into contempt or disrepute any persons.”
Does the provision that prohibit the registration of trademarks that may “disparage, or bring into contempt or disrepute any persons” violate the Free Speech Clause of the First Amendment?
Yes. The federal provision that prohibits the registration of trademarks that may “disparage, or bring into contempt or disrepute any persons” violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle which provides that speech may not be banned on the ground that it expresses ideas that offend.
The First Amendment protects against laws “targeted at specific subject matter,” a form of speech suppression known as content-based discrimination and more specifically, laws aimed at the suppression of particular views on a subject. The Government here targeted a specific content in the trademark. Also, 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 grant that power to the Government’s benevolence.
The First Amendment prohibits Congress and other government entities from abridging the freedom of speech. As opposed to the Government’s argument, trademarks are not government speech, because a patent examiner of the PTO, an arm of the federal Government, does not inquire whether any viewpoint conveyed by a trademark is consistent with Government policy. Trademarks, which often have an expressive content, are created and publicized by companies after spending huge amounts of money. Trademarks are private, not government, speech.
Moreover, the Government argues that it has a legitimate interest in protecting the orderly flow of commerce, which they allege to be disrupted by trademarks that involve disparagement of race, ethnicity, religion and other classifications. However, the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause prohibits trademarks like “down with racists, or ” down with homophobes.” It is not an anti-discrimination clause and does not apply to the trademark at issue here.