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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
Only some of them.
I think your attempt to slice and dice the First Amendment is ahistorical and atextual. If you want to regulate my thoughts, word, or writings (or those of your fellow citizens), you have to come up with something more convincing than saying your reading is obviously correct.
In other words, our God-given freedoms don’t depend on the vagaries of what any individual thinks are “fundamental.”
Courtesy and politeness are products of a strong social fabric. You can’t repair the social fabric with intrusive legislation.
I of course have no interest in regulating anything about you–as for my fellow citizens, well, they’ve never really asked my opinion, so I suppose they can take care of themselves.
As for calling what I said ahistorical: The opinion that freedom of political discussion & freedom of religious disputation are fundamental is the opinion of the Founders, often stated. If you don’t see the obvious, I don’t mind pointing it out at length–but I do not have any inclination to start a disquisition on political philosophy in the Founding.
If you want to talk about the natural rights teaching of the Founders, I’d love to, not only because I’ve studied it for long years, but because I’m doing it all over again, courtesy of the Claremont Institute. If you think that the Founding had anything to do with calling anything you want to say somehow part of a God-given right–I’d love to hear about it. I hope you are aware that Americans in various times have put all sorts of limits on all sorts of activities that are now comprehended within the 1st Amendment. Some of this changed because of the 14th Amendment being reinterpreted in a fairly alarming way. But a lot had to do with changing jurisprudence on the 1st amendment in the mid-century that didn’t even bother to pretend to be constitutional.
Your opinion about what legislation can do or when it’s intrusive has zero influence on me being that I don’t know you from Adam. You have a right to state it, of course–& maybe other people take your bald assertion on faith, who knows…
In the immortal words of Kwai Chang Caine, “As with the circle, all things return.”
I want to keep pornography out of the public square, for instance.
To a different aspect of this decision, SCOTUS goes unanimous in overturning, does anyone give the overruled lower court a hard time? Do reporters ever try to interview judges asking “How could you all be so wrong? (So often?)”
Can it be done? Would it be a good thing?
A piece on a circuit that screws up more than a few times that deals with all that would be worth trying. Or screwups on one issue, involving several circuits…
It’s usually worth being part of public opinion. But it’s not easy; it’s not popular; instead, when people have a problem with something & speak up, it’s often the most hysterical voices that get the most attention or money or both…
But: once arguably apolitical speech becomes censored by a political body, it becomes political speech, thereby retroactively making it fit the criteria for speech that should not be censored.
If the word “pickle” was deemed unsavory by a township and banned, then my choice to say or print the word “pickle” as an act of defiance within that township is political speech.
Actually, no. Trademarks are generally a matter of state law. The federal Lanham Act provides a system for federal registration of trademarks, which gives added protection. Many states, including my home state of Arizona, have state systems for registration of trademarks. Further, even in the absence of any registration system, the common law of trademarks would generally apply (though this may vary from state to state).
Skip, I don’t mean to pick on you, but this is not necessarily the case. Split decisions can make it very difficult to interpret and subsequently apply a SCOTUS decision, as in Planned Parenthood v. Casey (abortion) or Youngstown Sheet & Tube (Presidential war powers).
Both the main opinion in Matal v. Tam (by Alito) and the main concurrence (by Kennedy) have strong statements supporting broad free speech rights, but there is no resounding holding on the issue that gained a majority.
The Court did not give a conclusive ruling on a key issue — whether commercial speech is subject to “relaxed scrutiny” under a prior case called Central Hudson. Alito’s opinion found it unnecessary to reach this issue, in a section joined by Roberts, Thomas, and Breyer. Thomas wrote separately to state that he rejected the relaxed scrutiny of Central Hudson. Kennedy’s concurrence (joined by Ginsburg, Sotomayor, and Kagan) didn’t directly address the Central Hudson doctrine. Kennedy’s concurrence rejected relaxed scrutiny for commercial speech that involves viewpoint discrimination, but not necessarily for content discrimination.
Unfortunately, in my view, the Court does not have a great track record in identifying viewpoint discrimination, as demonstrated by the 2010 decision in Christian Legal Society v. Martinez, in which this was the central disagreement.
Three things from a musician/songwriter.
1) My bands name is Cracker. I’ve held a trademark on this name for more than a quarter of a century. The Obama USPTO let me renew, but would not approve of the Slants? The humour, hypocrisy and ickiness in this is multidimensional and almost defies description. I almost filed an amicus in this case. Glad they won.
2) From a songwriter/copyright holder perspective this is interesting. The last 70 years of hyper regulation/price setting in the market for songs has relied at least partially on the notion the federal government grants me this right, or as some on the cyber-left (strangely) prefer copyright is a “government subsidy.” Both positions argue there is not a property or natural right in my own work, the Lockean fruit of my labor. This ruling seems to unwind some of this. Perhaps we can reverse the creeping collectivization of our rights?
3) Songwriters of North America have sued the Justice Department under the 5th for an unconstitutional taking. The justice department under former Google counsel Renata Hesse arbitrarily changed a rule that greatly benefits YouTube. It is a seeming small matter as to whether certain co-writing co-ownership arrangements should be allowed under antitrust law. The consequence of the rule change to a 70 year old “temporary” consent decree is ex post facto voiding of private contracts and greatly diminished value of existing works in many instances (biggest beneficiary by far Google/YouTube) I’d love to see this one in front of THIS court.
Is the musician’s name really Simon Tam? That’s the doctor from the Firefly series.
I don’t feel picked on. Always glad for the clarifications.
I second the motion. Also as a Camper Van Beethoven fan.
Aww thanks folks!
On the “government subsidy” point. The Left doesn’t like the idea of private property rights at all. Well, except for their own houses and other stuff, especially the bedrooms, into which government must never intrude.
Intellectual property is generally a tricky subject, with issues like fair use, independent development, and time limitations on rights. But it’s not a subsidy. You are absolutely right that this law provides protections for Lockean property rights.
I also love the thought of a Cracker with a sophisticated understanding of Locke. I imagine that most Ivy League graduates have never heard of him. Oh, but they know all about Che!