Few Supreme Court cases are as unsexy as trademark cases. The rock band “The Slants” are doing their part to put lipstick and heels on a Supreme Court trademark case by marrying it to Rock n’ Roll, free speech, and bigotry in a Supreme date with destiny. You never heard of The Slants? Me neither, and my musical taste spans from Sinatra, to Elvis, to George Jones, to Bruce, and right down to Neon Trees. Chances are The Slants will make their mark in American society as legal precedent rather than as rockers. Who are The Slants, and how did they get to the Supreme Court?
An Asian dance rock band, The Slants applied to the Patent and Trade Office to trademark their band name, The Slants. The term slants has an ethnic and racist overtone related to historical references by some to certain Asians as “slant-eyed.” When the trademark application reached the desk of an examiner, it was rejected for violating the Lanham Act, which prohibits the disparagement of another group in making a commercially protected mark. The Slants lost their appeals at every agency and court level until a rehearing of the entire Federal Circuit found that the Lanham Act used to deny the trademark was, on its face, an unconstitutional infringement on free speech. The Agency appealed, and now the case moves before eight more lawyers who likewise probably never heard of The Slants.
In an era where free speech is under assault on campuses and across this country, this case has the potential to expand free speech rights into an area formerly considered commercial speech. If The Slants win, the government will not be the moral arbiter of trademark rights. That is a good thing, no matter what one might think of the band, its music, or its obviously off-color name. Make no mistake about it; many others are watching the outcome of this case, and they include the Washington Redskins, who had their attempt at a fast-track appeal to the Supreme Court denied.
The notion that Americans do or should have unfettered free speech is grossly misunderstood. We do not. Our government limits our speech through time, place, and manner restrictions. It must have a compelling state interest to do so, and no speech enjoys greater government protection than free political speech. Our protections, however, mean only that government cannot retaliate against us for our speech. Many Americans confuse that right to live free from government retaliation for political speech with the incorrect notion that others, particularly employers, must tolerate our speech. As I have written, Colin Kaepernick’s right to sit during the National Anthem is not free speech. That case does not implicate the government. His right to disrespect our country comes from his employer and league. When you see NFL “protests,” by players, you are watching NFL sponsored and endorsed conduct. The government has no role there, nor should it.
Against that backdrop, why would The Slants have the right to force the government to condone their derogatory and bigoted name with trademark protection? First, even without the trademark, The Slants and an organization like the Redskins have common law legal rights to established brand marks. Second, the government denying the mark does not eliminate the conduct, speech, or brand. In fact, it might permit others to create the same or similar name and profit off the mark. Ironically, denying the trademark could, if the mark is popular, lead to more uses.
Mostly, however, the government’s role here is not to condone or promote the mark, but to protect the intellectual property behind it from being stolen or copied by others. What the government wants to do is determine the quality of speech to which it will provide its duty of protection. This, it should not be permitted to do. The government should verify the originality and authenticity of the mark, and let Americans determine the value of the speech. It is the duty of the mark-maker to use the mark and to set it out for success or failure. Trademarking is not government endorsement of the mark; it is protection of your free speech, flawed though it may be. In the end, a trademark’s only value is against unfair competition by those who would steal and profit from the mark. The protection is not against scorn and public outcry.
The government may have a compelling interest in rare circumstance to limit our speech. And for sure, the quality of our speech is increasingly sad. However, no one wants government to determine what may be spoken. Shunning and shaming free speech is a responsibility of our fellow citizens. The government should never arbitrate what is acceptable speech. Americans do not, should not, and ought not have a government that determines the strength of our mark and our right to launch it, stupid as it might be.
I have long been troubled by the notion that our commercial speech ought to enjoy less government protection than political speech simply because we might profit from that speech. Profit and loss do not make commercial speech less noble than political rantings. Indeed, the market is likely the best arbiter of the quality, acceptance, and value of controversial speech.
On the issue of opening up more free speech, The Slants prove it is time to Rock ‘n Roll.
Richard Kelsey is an attorney practicing with The Impresa Legal Group. A former Assistant Law School Dean and a former Virginia state court law clerk and commercial litigator, Kelsey was also the CEO of a technology company. He has previously taught legal writing and pre-trial practice. He is a regular commentator on legal and political issues in print, and on radio and TV. His opinions are his own, and do not represent any institution or entity.