The Slants (and the Redskins) win: The government can’t deny full trademark protection to allegedly racially offensive marks

The Supreme Court building is seen in Washington. (J. Scott Applewhite/Associated Press)

That’s what the Supreme Court just held this morning, in Matal v. Tam. The court was unanimous on the result and some basic principles, though split 4-4 (Justice Neil M. Gorsuch wasn’t yet on the court when the case was argued) on some details. I’ll blog more on the case throughout the day, but here are the core pillars on which the justices agreed:

1. By denying registration to trademarks that allegedly disparage certain kinds of groups, the federal trademark law (the Lanham Act) discriminates based on viewpoint:

Our cases use the term “viewpoint” discrimination in a broad sense, and in that sense, the disparagement clause discriminates on the bases of “viewpoint.” To be sure, the clause evenhandedly prohibits disparagement of all groups. It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue. It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.

We have said time and again that “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576, 592 (1969). See also Texas v. Johnson, 491 U. S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”) [more cases omitted] …

That’s from the majority opinion, written by Justice Samuel A. Alito Jr. and joined by Chief Justice John G. Roberts Jr., Justice Clarence Thomas and Justice Stephen G. Breyer; but a concurring opinion by Justice Anthony M. Kennedy, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, agreed:

[The Government argues] that the law is viewpoint neutral because it applies in equal measure to any trademark that demeans or offends. This misses the point. A subject that is first defined by content and then regulated or censored by mandating only one sort of comment is not viewpoint neutral. To prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so. … The logic of the Government’s rule is that a law would be viewpoint neutral even if it provided that public officials could be praised but not condemned. The First Amendment’s viewpoint neutrality principle protects more than the right to identify with a particular side. It protects the right to create and present arguments for particular positions in particular ways, as the speaker chooses. By mandating positivity, the law here might silence dissent and distort the marketplace of ideas.

The Government next suggests that the statute is viewpoint neutral because the disparagement clause applies to trademarks regardless of the applicant’s personal views or reasons for using the mark. Instead, registration is denied based on the expected reaction of the applicant’s audience. In this way, the argument goes, it cannot be said that Government is acting with hostility toward a particular point of view. For example, the Government does not dispute that respondent seeks to use his mark in a positive way. Indeed, respondent endeavors to use The Slants to supplant a racial epithet, using new insights, musical talents, and wry humor to make it a badge of pride. Respondent’s application was denied not because the Government thought his object was to demean or offend but because the Government thought his trademark would have that effect on at least some Asian-Americans.

The Government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker’s audience. The Court has suggested that viewpoint discrimination occurs when the government intends to suppress a speaker’s beliefs … but viewpoint discrimination need not take that form in every instance. The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing.

2. While the government may discriminate based on viewpoint when it comes to speech that is treated as the government’s own speech, trademarks are private speech (albeit protected by the government against certain forms of infringement) and not government speech.

3. Even if these trademarks are viewed as “commercial speech” (basically, commercial advertising), which is subject to somewhat more restrictions than other speech — and the court stresses that they might not be — such speech still can’t be restricted because of its alleged offensiveness; as the Alito opinion notes,

The Government [claims it] 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.” United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).

Likewise, the Kennedy opinion says,

To the extent trademarks qualify as commercial speech, they are an example of why that term or category does not serve as a blanket exemption from the First Amendment’s requirement of viewpoint neutrality.

And Kennedy concludes,

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

Congratulations to my UCLA colleague Stuart Banner, who wrote the brief, and to John Connell, who argued the case.

Disclosure: I was one of the lawyers on the brief, but Stuart did the overwhelming share of the work.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/19/the-slants-and-the-redskins-win-the-government-cant-deny-full-trademark-protection-to-allegedly-racially-offensive-marks/

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