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The Slants Win at the Supreme Court
In January, I posted about Simon Tam and his band The Slants, which had been denied trademark protection on the grounds that the name is racially insensitive and therefore forbidden in the marketplace. This morning I see that Tam has won his case, the Court unanimously concurring but issuing two opinions, one written by Justice Alito and concurred with by the Chief Justice, Justice Thomas, and Justice Breyer; the other by Justice Kennedy who was joined by Justices Kagan, Sotomayor, and Ginsburg in a separate opinion that affirmed in part and concurred in the judgment.
From Alito’s opinion:
Perhaps the most worrisome implication of the Government’s argument concerns the system of copyright registration. If federal registration makes a trademark government speech and thus eliminates all First Amendment protection, would the registration of the copyright for a book produce a similar transformation? See 808 F.3d, at 1346 (explaining that if trademark registration amounts to government speech, “then copyright registration” which “has identical accoutrements” would “likewise amount to government speech”). The Government attempts to distinguish copyright on the ground that it is “‘the engine of free expression,’” Brief for Petitioner 47 (quoting Eldred v. Ashcroft, 537 U. S. 186, 219 (2003)), but as this case illustrates, trademarks often have an expressive content. Companies spend huge amounts to create and publicize trademarks that convey a message. It is true that the necessary brevity of trademarks limits what they can say. But powerful messages can sometimes be conveyed in just a few words. Trademarks are private, not government, speech.
I rejoice for the republic.
Published in General
What is so funny is that slants is just a word. It only gathers the racial epithet status from someone who uses the word that way.
You know they hold their guitars on a slant. Maybe that was their reference. ?
Also: Thanks for keeping track of this, Mama Toad!
Who defines objectionable. What if “the people” decide being a Republican is objectionable and any speech supporting Republican positions is objectionable hate speech? Or being a Christian is? We saw what that can lead to. Ask anyone who is Jewish about that.
I get that the United States has a different attitude towards speech than the rest of the world. I view that as a feature, not a bug. Self-government is not the government policing what individuals say. It is individuals policing what they say. You cannot have a representative government unless individuals can be trusted to act responsibly. If individuals cannot be trusted with what they say, how can they be trusted with choosing who runs their country?
Seawriter
Mr. Seawriter, unless you wish to say that your forebears are un-American now that they’re dead, you might remember that when they lived America countenanced far more censorship than she does now.
Well, my forebearers, at least the ones older than my grandparents (who had the good sense to move the the US), were all from Greece. Those alive in the 18th and 19th century would have loved the privilege allowed those in the US after 1788, even the more limited privilege then existing. It just took a while for the US to shake off its bad habits acquired from the Old World.
As for me, I bless my grandparents judgement in leaving their villages and islands to come the the US every morning. Especially that I can use any words I wish without the heavy hand of the government intruding.
Seawriter
Generally, the speech that people find the most objectionable is either political or religious. If you’re going to protect the most objectionable speech, why would you bother censoring the rest of it?
Personally, I prefer a more robust, liberal conception of self-government–one in which we are, to great degree, free to govern ourselves–and not the narrow conception, in which we may occasionally get to vote on who will govern over us.
Well, perhaps you are right about what a blessing, to you specially, or to the country as a whole, the new teaching about free speech is. But I would not be quick to decide that Americans two generations back were wrong–& they certainly disagreed with you.
Because the most important things are politics & religion. Why they’re in A1 & why they’re so important to the Founders themselves.
Other kinds of speech not being natural rights or fundamental to humanity, they fall under the self-government of the various legitimate governments Americans have constituted for themselves.
Well, what do you mean by ‘ourselves?’ Do you mean you yourself alone, everyone else alone, each one as radically individual? Or what ‘ourselves’ really means–towns, counties, states, the Union… deciding for themselves in ways they find fitting?
Then don’t. I have not said they were.
Seawriter
Mr. Seawriter, surely, if you’re aware, first, that your opinion about free speech is not what prevailed in America until the mid-century &, second, that both yours & theirs cannot be right…
I don’t see in the 1st amendment the distinction between religious and political speech on the one hand, and other kinds of speech on the other, that you seem to see.
I’m also not comfortable letting politicians, judges and bureaucrats decide what qualifies as “political” or “religious,” and what is “bigotry” or “hate speech.”
The point of censorship isn’t so much to protect yourself and your kids from content which you find objectionable–nobody’s stopping you from doing that. The point is to protect other people from content you don’t like.
The first object of the first Amendment is freedom of religion & the separation of church & state. That’s an important thing.
The rest of the Amendment deals with political speech primarily–it’s the only explicitly mentioned speech, apart from religion, from several different angles!
That speaks its importance; nothing else is mentioned, because it doesn’t really matter in the same way & because it’s not muh of a federal issue-
The latter are not constitutional categories (except in one specific sense)–the former are–so politicians have been involved with them from the beginning of American politics…
This is an inadequate answer at best: The question is whether any community, town or state or Union, has any right to govern itself on these matters. America up until the mid-century or a bit later answered in one way, mostly–since, people keep trumpeting the no answer. It’s at best debatable…
It’s a unanimous ruling, even if the opinions differ on some technicalities, so it’s very very binding.
Skip, maybe I’m wrong about this–but it’s my recollection that there is a difference between a ruling & a precedent. A ruling decides one case. For a decision to be precedent, to have force over similar questions in lower courts, that is, it requires a majority opinion.
Note that I used the wiggle words “to a great degree.” I recognize that there are decisions that ought to be made collectively, and carry with them the force of law. I just think the universe of such things should be as skinny as possible. Obviously, how this works out practically will vary from issue to issue.
I’m of a different opinion: I think Americans in this age need to legislate in their smallest communities–to get a sense that they’re not powerless individuals in face of an enormous state…
Let’s go to the text:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Where/how is the “freedom of speech, or of the press” limited to political speech? Clearly, religious exercise is protected, and the rights peaceably to assemble and to petition the government are protected. Don’t see any textual limitation on the freedom of speech.
It is true that the Founders all had very different ideas about what the First Amendment actually covered. Some might not agree with an expansive reading of the text, but some surely did. And the text is what governs, first and foremost, under an Original Public Meaning interpretation.
There is no difference except in how much the lower courts may attempt to buck said ruling. A ruling is a ruling and is always a precedent, and it is supposed to guide all lower courts on any similar cases. The test always comes when some court decides it either will disregard the ruling, challenge it directly, or find a loophole.
Secondly – much depends on the scope of the ruling. Was this a case decided on very narrow technical grounds, or were the opinions written very broadly and reaching back to first principles? The narrow technical cases don’t inform other courts much because they are always on narrow and technical cases. This case is different. This is broad principle, and therefore a major punch at one of the last dregs of Obama Administration policy. It is also a warning to lower courts and rogue state prosecutors.
On a trademark case? Trademarks are an exclusively federal matter.
No, as I said, this seems a good ruling to me.
I mean legislation, primarily, in the smallest communities–as opposed to Congress–but of course not on this issue particularly–nor on issues under the sole power of Congress under the Constitution, either…
The press has to be construed somehow–for example, presses are in no way involved in printing on a printer or in digital texts. But press has got to have some meaning–what it meant, of course, was the political press. Being that there was a political press, this seems obvious. I’m not sure how come it’s not obvious to you–please explain. As to what other kinds of press might be protected or thought in need of protection–that’s worth discussing, but doesn’t seem to me fundamental. So that you’d probably get away with calling the president a monkey or hermaphrodite–but if you wanted to sell Playboy, that probably would easily be censored.
Beyond the press, the other reference to political speech is the rest of the amendment–peaceable assemblies to petition gov’t.
Mr. Techera, I’m not a wild revolutionary who desires to toss off the shackles of the past, so generally speaking your admonition to consult previous generations meets my approval.
However, you haven’t made much of an argument in favor of your seeming position that the trademark office in days past would have banned the use of the name as well.
I wonder though. It seems to me that it is likely that terms deemed derogatory and unacceptable today were more common place in Ye Olde Days, such as slants, gooks, chinks, and the like. So perhaps the idea that offending Asian Americans was not okay is pretty new, and Tam would have had no troubles registering The Slants in 1917?
A thing can be wrong for more than one reason. That doesn’t make it any less wrong.
Again, I think the ruling in this case is ok. I think the ground the gov’t chose to stand on– ‘gov’t speech’–is mostly crazy talk. I said as much, first two points of first reply!
It’s the broader problem of free speech that I was talking about beyond that… But somehow that’s the only part that people wanted to dilate on, so that’s the way the discussion went…
I would agree that ethnic slurs or terms of endearmen were far less problematic previously. I’m not sure about ‘no trouble’ however–there may have been other things in America than the federal gov’t keeping these kinds of names out of trademarks. The mores, the times…
Good old Cicero…
I too have nostalgia for the societal standards of the past and could wish our society to be more polite, more mannerly, but not by fiat of the trademark office.
@titustechera
Some examples of old racist product trademarks and names that were common:
There was a predominately Native American* high school that made the announcement that their team was going to be known as either the Mighty Whities or the Mighty Whites (reports varied). The response was an overwhelming request for tee shirts. If your response to a slur is laughter, the slur goes away. You can’t insult people who refuse to be insulted.
* My grandfather was a native American. His grandfather was a native American. His grandfather was a native American, and his grandfather was too. His grandfather got thrown out of Europe for being a sore loser. He lost the Thirty Years War.**
** Not all by himself, but still…
Better than the Tighty Whities.
Later changed to “The Boxers”.
Which is an insult to the Chinese-