WASHINGTON, DC — The U.S. Supreme Court heard oral arguments today in Lee v. Tam, which challenges the government’s practice of rejecting trademark applications for names that might be offensive to certain persons or groups. The case involves an Asian-American dance rock band, “The Slants,” whose trademark application was denied by the U.S. Patent and Trademark Office (PTO) on the grounds that the trademark might disparage or offend persons of Asian heritage (even though the applicant himself is of Asian heritage). In coming to the defense of the Slants, attorneys for The Rutherford Institute argue that the federal statute violates the most fundamental First Amendment guarantees by suppressing speech that some may find offensive and by openly discriminating against speech on the basis of content and viewpoint.
A decision in Lee v. Tam will affect not only the registration of “The Slants” trademark but also the registration of the trademark for the Washington Redskins football team, which was cancelled on the grounds that it was “disparaging” of Native Americans. Affiliate attorneys Megan L. Brown, Joshua Turner, Christopher Kelly, Dwayne D. Sam and John T. Lin of Wiley Rein LLP assisted The Rutherford Institute in advancing the arguments in the Lee brief.
“Whether the debate is over a trademark for a rock band or a football team, the sticking point remains the same: how much do we really value the First Amendment, and how far are we willing to go to protect someone else’s freedom of speech, even if that speech might be offensive to some?” stated constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Whatever the rationale for criminalizing speech, the end result remains the same: outright censorship and the creation of a class system that renders speech perceived as politically incorrect, hateful or offensive as inferior and less entitled to the full protection of the law.”
Simon Shiao Tam is the front man for an Asian-American dance rock band called “The Slants.” Tam, who is of Asian descent and heritage, has previously stated that the reason the name was chosen for the band was that he and the other members wanted to “take on” the stereotypes of Asians and “own them”; the band is proud of their Asian heritage and does not want to hide it from the public. Tam also has indicated that the response he has received to the band’s name from the Asian community has been very positive. Nonetheless, when Tam applied with the PTO to have “The Slants” registered as a trademark, the application was denied under a provision of the federal statutes which allows the PTO to refuse to register a trademark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Tam appealed the decision and argued that the statute violated the First Amendment because it discriminated against expression on the basis of the viewpoint of the speaker and was unduly vague. In December 2015, the U.S. Court of Appeals for the Federal Circuit ruled in favor of The Slants, declaring that the government cannot refuse to register trademark applications merely because it disapproves of the expressive messages conveyed by the marks.