Supreme Court Reminds US Government That Hate Speech Is, In Fact, Free Speech

from the you-may-not-like-it,-but... dept

We've written a few times now about the case involving the band "The Slants" and their fight against the US Patent and Trademark Office concerning whether or not the band could trademark its own name (and, yes, this case is indirectly tied to the fight over whether or not the Washington Redskins can keep its team name trademarked). The key issue is a part of trademark law -- §1052(a) -- that says that the USPTO can deny trademarks if they "disparage... or bring into contempt or disrepute... persons, living or dead." When we first came across this case, a few years back, I argued that this clause did not violate the First Amendment. My argument, originally, was that a failure to grant a trademark was not restricting speech in any way (in fact, it was the opposite -- it was allowing more speech, since the registered trademark could no longer be used to block the speech of others).

But the issue is a tricky one, and after thinking about it more, reading much more and talking to a number of lawyers, my position shifted. And the hinge on which it shifted was this: the problem with 1052(a) was that it involved the government determining whether it "blessed" something with a trademark based on the content. And that, right there, has always been seen as a problem for the First Amendment. The government should not be making any subjective decisions based on expression -- and, yet, under 1052(a) it was. And now... the Supreme Court has agreed with that view and has struck down 15 USC 1052(a) as unconstitutional under the First Amendment, which makes this a big win for the First Amendment. And, on top of that, the Court went so far as to state upfront that a favorite claim of lots of angry people (on all sides of the political spectrum) these days -- that "hate speech" is somehow not "free speech" -- is simply untrue. The full ruling is 39 pages, which includes different Justices agreeing on some parts and not others, and writing separate concurring opinions -- but the overall point is clear. The court notes that the government, itself, is protected by the First Amendment and can take its own viewpoint on things, but this is different, because it's not content created by the government:

At issue here is the content of trademarks that are registered by the PTO, an arm of the Federal Government. The Federal Government does not dream up these marks, and it does not edit marks submitted for registration. Except as required by the statute involved here, 15 U. S. C. §1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. Thus, unless that section is thought to apply, an examiner does not inquire whether any viewpoint conveyed by a mark is consistent with Government policy or whether any such viewpoint is consistent with that expressed by other marks already on the principal register. Instead, if the mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory.

Thus, there is no legitimate argument that barring the government from rejecting trademarks for disparagement violates the government's own First Amendment rights.

Then, there's the question of whether this is denying someone a benefit based on their constitutionally protected expression. The PTO pointed to a few other cases involving government subsidies, which has said the government can deny subsidies over activities it does not wish to promote. However, the Court rejects the PTO's argument here fairly simply, saying that registering a trademark is quite different than getting a subsidy.

The PTO also argues that this issue deserves less First Amendment scrutiny because -- by definition -- trademarks involve commercial speech. But the Court rejects that and makes its most forceful statement in support of free speech -- even when hateful. It's this part of the ruling that seems likely to be quoted in many free speech cases in the future concerning hateful speech:

But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Yes. Demeaning speech is hateful. Yes, hateful speech is generally a bad thing. But, no, we don't block it because the First Amendment strongly protects all such speech, out of a fear that opening up that door will allow in censorship of merely controversial ideas.

And the Supreme Court then also makes another important point, that if you allow the First Amendment to be chipped away on "commercial speech" like this, you create all sorts of other problems:

There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered.

You need to protect the speech you dislike because the speech you may like may be disliked by others.

In the end, this is a good win for the First Amendment and for free speech.

Filed Under: 1st amendment, disparagement, first amendment, free speech, hate speech, scotus, supreme court, the slants, trademark, uspto

Supreme Court Delves Into Question Of Whether Or Not You Can Trademark 'Disparaging' Terms

from the not-an-easy-question dept

A little over a year ago, we wrote about an appeals court ruling saying that the US Patent and Trademark Office (PTO) could not reject a trademark based on the fact that it was "disparaging" towards an individual or group. The case focused around whether or not a Portland band named "The Slants" could trademark its name. The band, which is fronted by an Asian American named Simon Tam, had its trademark rejected by the PTO on the claim that it was disparaging to Asians.

As I noted at the time, I had struggled with my own opinion on this question as well -- initially arguing that this shouldn't be a First Amendment issue, because refusing to grant a trademark registration in no way interfered with anyone's freedom of expression. Instead, it did the opposite, and made it clear that anyone could make use of the content without restriction or fear of infringing on someone's registered mark (though, a common law trademark may still be an issue). Over time, and after lots of discussions with lots of people on all sides of this issue, I eventually came down on the other side. The key issue was not whether or not speech was blocked, but rather that there's a law that determines something based on the content of speech, and it's that point that makes it a First Amendment issue.

The PTO appealed the appeals court ruling, and it's been pretty fascinating to follow the case over the past year. For some fun, I encourage folks to read some of the amicus briefs filed in the case. Public Citizen's brief (in support of neither party) most closely matches my own views. The brief from the think tank Cato is also a fun read in that it tries to make its point about the vagueness of what's disparaging and what's not in somewhat amusing ways:

For example, one of this brief’s authors is a cracker (as distinct from a hillbilly) who grew up near Atlanta, but he wrote this sentence, so we can get away with saying that. Another contributor—unnamed because not a member of the bar—is an Italian-American honky who has always wanted to play in a band called the Dagos, which of course would close every set with "That's Amore" from "Lady and the Tramp." But, with only his great grandparents having come from Italy, is he dago enough to "take back" the term? And amici's lead counsel is a Russian-Jewish emigre who’s now a dual U.S.-Canadian citizen. Can he make borscht-belt jokes about Canuck frostbacks even though the first time he went to shul was while clerking in Jackson, Mississippi?

It gets complicated. And that’s the point. The disparagement clause places an unconstitutional condition on those who consider the use of an edgy or taboo phrase to be part of their brand.

Separately, I also highly recommend reading Sarah Jeong's impressive and detailed deep dive into the case for the NY Times Magazine. It has the following analogy which is just incredible:

Federal registration is the T.S.A. PreCheck of intellectual-property law: Not everyone has to get it, but if you do a lot of business, you probably should. The problem is that in the Slants’ case, the trademark office has come to look a bit like the popular image of the T.S.A.: a bureaucracy of bored enforcers just trying to churn through the queue and get through the day. Except that every now and then, something complicated comes down the screening belt, or someone gets a little overzealous about the job, and everyone winds up looking bad.

And this bit of background concerning the years-long back and forth between the Slants' lawyers and the PTO:

Shortly after receiving their initial refusal from the patent office, the Slants sent a response explaining that “Applicant’s Mark, as used ... is a positive term of self-reference that promotes cultural pride and recognition.” The response included several exhibits, including declarations from longtime Asian-American community organizers. The office replied with yet another refusal, just as lengthy and full of screenshots as the last one. This strange back-and-forth went on for over a year. In June 2011, the Slants submitted a 250-page request for reconsideration that included the results of a survey designed by two university professors, who concluded that few members of the Asian and Pacific Islander community viewed “the Slants” as disparaging. The office responded with a 157-page denial that included more dictionary definitions, arguments in internet forums and, strangest of all, the comments thread under a blog post about the trademark dispute itself. In the comments, the blogger opines that the Slants’ name “would be like a black performer calling himself the N-word.” The writer continued, “It would be ridiculous and people would see that performer as ridiculous.” Then, Tam himself barges into the thread the office cites, with a long, detailed response that begins by pointing out that the “N” in the name of the rap group N.W.A. stands for the N-word.

There's much more in there, so go read it.

And that brings us to Wednesday, when the case was finally heard before the Supreme Court. You can read the full transcript of the oral arguments with the standard caveat that very rarely can you actually determine how the Supreme Court will rule based on oral arguments. I won't dive into the whole thing, but it is worthwhile to read through it. The lawyer representing the PTO, Deputy Solicitor General Malcolm Stewart, gets tripped up pretty early on. The Justices are trying to understand why it's okay for the PTO to reject "disparaging" trademarks, and the best Stewart can argue is that such marks are a "distraction" from the original intent of trademark, to be an indicator of origin of a good or service. Justice Breyer points out how little sense that makes:

The only question I have for you is what purpose related to trademarks objective does this serve? And I want to be sure I have your answer. Your answer so far was, it prevents the --or it helps to prevent the user of the product from being distracted from the basic message, which is, I made this product.

I take it that's your answer. And if that's your answer, I will --my follow-up question to that would be, I can think probably, and with my law clerks, perhaps 50,000 examples of instances where the space the trademark provides is used for very distracting messages, probably as much or more so than the one at issue, or disparagement. And what business does Congress have picking out this one, but letting all the other distractions exist?

Justice Alito also makes a fairly compelling argument against the rule that bars registered trademarks on disparaging terms by noting that pretty much everyone would agree that it would be unconstitutional for the government to deny government programs, like police or fire services, to groups it says have made "disparaging" remarks. The point being: determining who is eligible for certain government benefits based on the content of their speech is... problematic.

The arguments for the Slants were handled by John Connell, and here, Justice Sotomayor raised the initial issue I had with this line of cases, that nothing here stops the Slants from using the name:

No one is stopping your client from calling itself The Slants. No one is stopping them from advertising themselves that way, or signing contracts that way, or engaging in any activity, except that stopping someone else from using the same trademark. But even that they could do. Because you don't need a registered trademark to sue under the Lanham Act's entitlement for the confusion of the public in the use of any kind of registered or unregistered mark. If another band called themselves Slants, they would be subject to deceptive advertisements because they wouldn't be this Slants.

Connell does a pretty good job answering that:

In this case, the government has used the disparagement clause to selectively deny those legal benefits to a mark holder expressing negative views that the government favors, as opposed to mark holders who received those benefits because they express neutral or positive views that the government does favor.

In other words: isn't it a problem when the government blesses speech it likes, but refuses to bless speech it dislikes? There's a lot more in the arguments that are worth reading, and I (like many) look forward to the eventual ruling from the Supreme Court.

Filed Under: disparaging, first amendment, redskins, simon tam, the slants, trademark, us pto