In a reassuringly sweeping decision, the Supreme Court on Monday struck down a federal law prohibiting the registration of trademarks that may disparage individuals, institutions, beliefs or national symbols, or “bring them into contempt or disrepute.”
The 8-0 ruling was a victory for the Slants, an Asian American dance-rock band that chose its name as a way to redeem a word traditionally regarded as a racial slur, only to be blocked from trademarking its brand by the U.S. Patent and Trademark Office. Congress barred the registration of disparaging trademarks in 1946, presumably to avoid giving the government’s imprimatur to offensive slogans.
Writing for the court, Justice Samuel A. Alito Jr. wrote that the “disparagement clause” in trademark law “offends a bedrock 1st Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
Alito’s opinion rightly makes clear that the 1st Amendment is violated not only when the government prevents or punishes speech, but when it conditions benefits — such as the economic advantages that flow from federal trademark registration — on the content of speech. We don’t want the government deciding what brands and slogans are too offensive to be trademarked any more than we want the government deciding which shows are too disrespectful to be televised or which political treatises are too radical to be published.
Equally important, Alito dismissed the argument that trademarks amount to “government speech” — that is, pronouncements that the government itself makes (such as a presidential address) without having to remain neutral. “If the federal registration of a trademark makes the mark government speech, the federal government is babbling prodigiously and incoherently,” Alito wrote. “It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public. For example, if trademarks represent government speech, what does the government have in mind when it advises Americans to ‘make.believe’ (Sony), ‘Think different’ (Apple), ‘Just do it’ (Nike), or ‘Have it your way’ (Burger King)?”
With this ruling the court regains its bearings two years after an ill-conceived decision in which it defined government speech in absurdly broad terms. In that case, it ruled 5 to 4 that the state of Texas was “speaking” when it issued specialty license plates on which motorists displayed a dizzying array of personal and organizational messages of their choice. Therefore, the majority ruled, the state could refuse to issue a plate for the Sons of Confederate Veterans that incorporated the Confederate battle flag. (Alito dissented in that case.)
This doesn’t mean the government is compelled to engage in offensive speech itself. A state can (and should) refuse to fly the Confederate flag at its Capitol, a decision South Carolina made in 2015 after a racist mass murder at a Charleston church. Meanwhile, activists and sports fans are free to lobby the owners of the Redskins to change the team’s name, as we hope they will. But when the government attempts to censor or punish the “disparaging” speech of private individuals or groups, the 1st Amendment stands in the way. That was the resounding message of Monday’s decision, and it will echo beyond the confines of a Slants concert.
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