The first amendment states;
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Seems pretty straightforward to me. Which is why I find it baffling that there is a major free-speech case coming up every couple of years. One of this years cases, Matal v. Tam centered around Asian-American rock band, “The Slants,” being denied a trademark by the US Patent Office in 2011. This week the Supreme Court upheld an Appellate Court’s decision 8-0, that rules on the side of “The Slants.”
At issue is the 2011 decision by the United States Patent Office to deny the band the right to trademark their name. The Patent Office claimed that the band’s name, “The Slants,” was offensive, and therefore wasn’t allowed under what is called the “Disparagement Clause.”
The “Lanham Act” of 1946 is the federal statute that governs trademarks in the United States. As part of that act, the “Disparagement Clause” allows the Patent and Trademark Office to cancel trademarks that;
“ disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”
Among the arguments made by the government as a way of defending their case, they stated that; trademarks are government speech, not private speech, trademarks are a form of government subsidy, and that the constitutionality of the disparagement clause
should be tested under a new “government-program” doctrine.
Despite the government’s argument that the name “The Slants” was offensive, the all Asian band disagrees. They chose the name as a way to challenge established stereotypes. Simon Tam told Reason back in April;
“When I found out what the government was doing and how they were doing it, how they were using it to suppress speech and how they were trying to take rights away from my own community, I decided that was not right. So all of a sudden it became about principle. When I believe they are violating the values of our country and violating my own values, I decided that had to be stopped, no matter the cost.”
The government got bitch slapped by the first amendment.
“It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
Alito continued on to criticize the government’s argument;
“The Government has an interest in preventing speech expressing ideas that offend.” ..”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.'”
The court continued to re-iterate the point, stating;
“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. For this reason, we must exercise great caution before extending our government-speech precedents.”
What Does This Mean?
It means the “Disparagement Clause” of the Lanham Act has been declared unconstitutional. Matal v. Tam reaffirms the right to offend other people. It states that just because you do not like what is being said, does not mean it is illegal. The court hammered in the point that disparaging trademarks could not be prohibited under such broad terms;
A simple answer to this argument is that the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. 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.
The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution.
A real world example would be the NFL’s Washington Redskins, who in 2014 had their trademark cancelled under the “Disparagement Clause.” It now seems likely that the Redskins will be able to retain their trademark.
Hopefully, one of these days, people will actually read the first amendment and stop bringing forward such idiotic cases.