Take a listen to From the Heart, a song about free speech by Portland band The Slants.
This band has an interesting name and to some an offensive one. Slant is a pejorative for people of Asian heritage.
It references the misperception that all Asian people have “slanted” eyes, that is to say their upper eyelids fold in a way as to make the eye narrower.
It lumps a huge, diverse group of people together based on one feature and implies the feature makes that group inferior to those with “normal” eyes. When used with malice it can be degrading, dehumanising and upsetting.
Founder of The Slants, Simon Tam, chose the name deliberately.
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An Asian American, Tam wanted to reclaim the word from those who would hurl it at him just as the LGBTQ community reclaimed ‘Queer’ and the African American community have drained a lot (but not all) of the power from an ethnic slur that will not be repeated here.
“When I started this band, it was about creating a bold portrayal of Asian American culture.” said Tam in a statement. ”The establishment of an Asian American band was a political act in itself, even though we never considered ourselves as a political group.”
Like most artists Simon wanted to protect his creative property. He applied for a trademark on the name The Slants at the the Patent and Trademark Office (PTO).
The application was rejected.
The PTO said the trademark violated the Lanham Act, or the Trademark Act of 1946, which among other provisions denies the right to register a trademark that may “disparage or bring into contempt or disrepute” any “persons, living or dead”.
Tam could call his band the Slants all he wants, the PTO were effectively saying, but by registering a patent he would be making the government sign off on it.
That was eight years ago.
Since then Simon has worked his way up the judicial system, fighting for his band name. Two days ago the Supreme Court of the US finally gave it to him.
Attorney John C. Connell, counsel for respondent Simon Tam, Matal v.Tam concluded Jun 19, 2017.
Most cases don’t make it to the big leagues like this. Cases heard before the supreme court are ones of national or constitutional significance.
When the highest court in the land decides not to take a case they are by default deferring to the judgement of a lower court. You can’t appeal all the way up, basically. Maybe just pay that parking fine.
This time it was actually the government that brought Matal versus Tam to the Supreme Court.
After several losses Tam had won his case in front of a federal judge, who decided the disparagement clause in the Lanham Act was unconstitutional under the first amendment’s free speech clause, and interim director of the US Patent and Trademark Office Joseph Matal appealed.
“The government was effectively saying this was putting the good housekeeping seal of approval on these marks (the band’s name and branding), or that they were endorsing the mark” said attorney John Connell, who along with his colleagues Ron Coleman and Joel MacMull of Archer attorneys-at-large successfully represented Tam. “The court didn’t put any weight into that argument at all and dismissed it out of hand.”
Indeed, in an opinion written for the court by justice Samuel Alito (it is common practice in the Supreme Court for one or more judges to write an opinion explaining their decision) the claim that trademarks constitute government speech is dismissed as absurd.
(…)it is far-fetched to suggest that the content of a registered mark is government speech. If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. (…) It is saying many unseemly things. It is expressing contradictory views. (…) It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public.
The opinion went on to question what the consequence of such an idea would be; companies essentially sock-puppeting the government, making it say what they want through trademark.
For example, if trademarks represent government speech, what does the government have in mind when it advises Americans to make.believe (Sony) Think different (Apple) Just do it (NIKE), or Have it your way (Burger King)? Was the government warning about a coming disaster when it registered the trademark EndTime Ministries.
After losing the case for years on trademark grounds Tam and his team eventually found the winning strategy through that core principle of US society: free speech.
The team argued that by denying Tam his trademark the patent office was making a decision based on morality, which is not their place.
The lawyers also argued given the inherently subjective nature of offence, the government would have to adopt a certain viewpoint in order to judge a trademark’s offense, something that is totally proscribed by the first amendment.
“Viewpoint neutrality is an immovable principle.” said Connell. “Viewpoint neutrality is viewpoint neutrality, and the government just can not weigh in on those discussions.”
Connell told Verdict that any name should be eligible for trademark no matter the offence caused.
This will have knock-on effects for other groups now, most notably the American football team the Washington Redskins whose owners have for years fended off demands to change the name widely seen as offensive to Native Americans.
The Redskins’ trademark was cancelled in 2014 on similar grounds that faced The Slants.
John Connell said the decision in Matal versus Tam certainly facilitates the ability of the Redskins to defend their mark, even though Tam himself has publicly said he thinks the team’s name is racist.
Connell said nonetheless the bedrock principle of free speech applies to both and ultimately it is up to the people to decide what offends them.
The debate about what is proper language or improper language – socially, culturally and so on – will continue to take place and we hope that it does. We want it to be a robust discussion but we want it to be a discussion where people take that responsibility seriously. It’s simply in the arena of public discourse, not governmental control, not governmental regulations. So long as the government is removed, the citizenry has the right and the duty to continue to work out for themselves what language ought to be used. The government is not supposed to be the referee of any of these issues, and (must not) be allowed to put their thumb on the scale.
Or in the words of the band themselves:
? Sorry if our notes are too sharp;
Sorry if our voice is too raw;
Don’t make the pen a weapon;
And censor our intelligence,
Until our thoughts mean nothing at all ?