Supreme Court Rules That Law Banning Offensive Names Is Unconstitutional

| JUN 19, 2017 | 4:36 PM
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Daderot/Wikimedia Commons via Creative Commons

Wikimedia Commons/Daderot

The Supreme Court on Monday found unconstitutional a provision of a federal trademark law banning offensive names, siding with the Asian-American rock group “The Slants.”

In an 8-0 decision, the court in Matal v. Tam upheld a lower court's ruling that the Lanham Act's disparagement clause was unconstitutional under the First Amendment's Free Speech Clause.

The Act prohibited the registration of trademarks that may “disparage ... or bring ... into contempt or disrepute” any “persons, living or dead.”

Simon Tam, founder and bassist of the Oregon-based band, had sought registration by the Patent and Trademark Office in order to “reclaim” the term from being a derogatory reference to people of Asian origin.

Justice Samuel Alito delivered the opinion, concluding that trademarks are private, not government speech:

Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way.

The court, he wrote, is cautious in extending its government-speech precedents, “for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.”

Furthermore, the disparagement provision of the trademark law in question was simply too broad:

The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: 'Down with racists,' 'Down with sexists,' 'Down with homophobes.' It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.

This ruling could be good news for the Washington Redskins, whose trademarks were canceled three years ago after the word “Redskins” was found to be disparaging to Native Americans. The Justice Department, backed by President Barack Obama's administration, had argued that the team's name is commercial speech and thus should not be afforded the same protections.