A trademark dispute involving an Asian American band that calls itself the Slants provoked a lively Supreme Court argument Wednesday over free speech, political correctness and the government's refusal to sanction what it sees as a racial slur.
The justices struggled over whether the refusal by Congress and the Patent and Trademark Office's to register trademarks that can be seen as disparaging people or their beliefs violates the 1st Amendment.
On the one hand, several justices said the government cannot discriminate against people solely because it does not like their message.
Justice Elena Kagan said the 1st Amendment has been understood to mean "you can't discriminate based on a viewpoint." The trademark office was saying it would register trademarks for people who say "good things" about Asian Americans, but "not bad things," she said.
But Justice Sonia Sotomayor said the government was not restricting anyone's freedom of speech. "No one's stopping your clients from calling themselves 'the Slants' [or] from advertising themselves that way," she said. "You are asking the government to endorse your name."
While many legal experts have assumed the high court would rule for the Slants and their 1st Amendment claim, that appeared less certain after the argument. Several justices said they were troubled by a ruling that would require the government to accept and endorse messages that demean people.
The Supreme Court has at times issued broad declarations about free speech. but it has also balked when asked to apply them to government programs. Two years ago, the court in a 5-4 decision rejected a free speech claim from a neo-Confederate group in Texas that sought a specialty government-issued license plate featuring a Confederate battle flag. While people are free to put a bumper sticker on their car featuring the Confederate flag, the state may refuse to issue such a plate in its own name, the high court said.
"You want us to say that trademark law is just like a public park, the classic example of where you can say anything," Justice Anthony Kennedy told the lawyer for the band.
But he and others questioned whether that free-speech principle applied directly to the government's awarding trademark recognition. The government lawyer who was defending the trademark office noted the law also forbids awarding trademarks to companies that seek to put-down their competitors.
The government would turn down a "competing soft drink manufacturer who wants to register the trademark 'Coke Stinks,'" said Deputy Solicitor Gen. Malcolm Stewart. "Obviously, under the 1st Amendment, we could not prevent that kind of criticism, but can decline to encourage it."
Chief Justice John G. Roberts Jr. cited the example of a state university that establishes a lecture series to celebrate Shakespeare and turns away speakers who criticize the playwright. "It's about celebrating Shakespeare. And if you disparage Shakespeare, you can't participate. Is there anything wrong with that?" he asked.
John Connell, a New Jersey attorney representing the Slants, said the trademark office is a "widely available program," and not the same as a lecture series. But he struggled to explain why the trademark office may turn down some names—like the fictitious "Coke Stinks"—but not others that include "racial epithets" or "insulting caricatures of venerated religious figures," as Stewart said.
If the Slants prevail, it may be because the case has been seen as an an example of political correctness.
Simon Tam, the band's leader, says he chose the name to co-opt and defuse a demeaning term that had been directed at Asian Americans. "We want to take on these stereotypes that people have about us, like the slanted eyes, and own them," he said when the case began.
But when he applied in 2011 to register the band's name as an exclusive trademark, the trademark office refused. It cited a provision in the Lanham Act of 1946 that says trademarks will not be issued for names that "disparage" people or "bring them into contempt or disrepute."
The decision was widely ridiculed, since the band members did not see their name as disparaging to Asian Americans. If they were not offended, why should the trademark office take offense?
But when Tam appealed to the U.S. Court of Appeals for the Federal Circuit, its judges issued a broad ruling striking down part of the law as violating freedom of speech. "It is a bedrock principle underlying the 1st Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys," the judges said.
Government lawyers say that ruling is wrong because an official trademark is the government's speech, not the private speech of citizens. They relied heavily on a Supreme Court ruling in 2015 in the Texas license plate case, Walker vs. Sons of Confederate Vets.
"Just as any motorist who wished to display a Confederate battle flag on his vehicle could do so on a bumper sticker … [Tam] can use the term 'slants' in any way he wants, even if his trademark cannot be registered," the government wrote in its appeal. "And just as the state of Texas could permissibly disassociate itself from a symbol it viewed as offensive to the public, the federal government can permissibly disassociate itself from disparaging trademarks."
The case heard Wednesday, Lee vs. Tam, will be closely watched because of its likely effect on Washington's professional football team, the Redskins. The trademark office has moved to revoke the team's trademarked name on the grounds that it is demeaning to Native Americans. The team has an appeal pending.
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3:05 p.m.: This story was updated with additional background and analysis.
10:30 a.m.: This story was updated with details from the argument.