The Supreme Court ruled [Monday] that the government cannot deny full trademark protection to allegedly racially offensive trademarks. The opinions are here.
The case involved an Asian-American band called “The Slants.” It sought federal registration of that mark. The Patent and Trademark Office denied the application under a Lanham Act provision prohibiting trademarks that may “disparage. . .or bring. . .into contemp[t] or disrepute” any “persons, living or dead.”
The Court ruled in favor of The Slants. The vote was unanimous, though the Court split 4-4 on some of the finer points.
Eugene Volokh summarizes the core points on which all eight Justices agreed (Justice Gorsuch did not participate):
1. By denying registration to trademarks that allegedly disparage certain kinds of groups, the federal trademark law discriminates based on viewpoint.
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.
Both of the main opinions are solid when it comes to protecting “hate speech.” Justice Alito wrote:
[The idea that the government may restrict] speech expressing ideas that offend. . .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.”
Justice Kennedy wrote:
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.
All eight participating Justices signed one or the other of these opinions.
As Volokh points out, in this case, the government didn’t bar The Slants from using the mark; it just denied certain protections that trademarks get against unauthorized use by third parties. But even in this limited context, the court held that viewpoint discrimination — including against allegedly racially offensive viewpoints — is unconstitutional.
Clearly, says Volokh, the same principle will apply to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more.
Of less moment is the fact that the decision means victory for the Washington Redskins. Some left-wing activists have been campaigning against that name on the theory that it demeans Indians. They suffered a huge setback when a poll by the sympathetic Washington Post found that Indians overwhelmingly aren’t offended by the name.
Unable to prevail in the court of public opinion, the activists have been trying to prevail in the court of the administrative state by attacking the Redskins trademark. Now, they will fail in this effort too.
Hail to the Redskins!
I have to give credit where it’s due. Thank you, Supreme Court, for actually DOING YOUR JOB and ruling according to the plain meaning of the 1st Amendment. As a bonus, the excerpts of Alito and Kennedy shown above even express the correct reasoning very well.
Not that I need a group of “justices” to tell me what my rights are, but at least in this case they made the right call.
How can the Supreme Court be ‘split 4-4’ on some of the finer points, now that Gorsuch has filled Scalia’s old seat?