Tuesday, January 31, 2017

“Should the government get to decide what’s a slur?”

CBLDF Joins Amicus Brief in Support of “The Band Who Must Not Be Named” | Comic Book Legal Defense Fund: "CBLDF has joined a basket of deplorable people and organizations on a Cato Institute-led amicus brief to the Supreme Court in Lee v. Tam, asking, “Should the government get to decide what’s a slur?” Among the deplorables who joined CBLDF on the brief are satirist P.J. O’Rourke; former ACLU president Nadine Strossen, Flying Dog Brewery (which once sued the state of Michigan over its attempt to stymie the sale of the brewery’s Raging Bitch IPA), and illustrator Ralph Steadman (who drew the label for Raging Bitch). When an activist Asian-American rock band decided to choose a name that both affirms their racial identity and reclaims a racist term as a way to challenge stereotypes — The Slants — they likely didn’t expect to end up in front of the Supreme Court. They anticipated some blowback, sure, but then the U.S. Patent and Trademark Office (PTO) denied their trademark application. 

 The PTO determined that The Slants were in violation of portions of the Lanham Act, which denies registration to trademarks “which may disparage … persons, living or dead, institutions, beliefs, or national symbols.” Band leader Simon Tam took the PTO to court, arguing that the band’s First Amendment rights were violated. A three-judge panel of the Court of Appeals for the Federal Circuit disagreed, but the full court reversed the earlier ruling in a 9-3 decision that struck down the disparagement clause in the Lanham Act as unconstitutional. 

The PTO appealed to the Supreme Court. Cato filed a brief in support of Tam, entitled “Brief of the Cato Institute and a Basket of Deplorable People and Organizations,” which David Post of The Washington Post called “an instant classic [that] is well worth reading — a nice illustration, among other things, that legal briefs can have serious doctrinal content while also being a hoot to read.”  

 Cato contends that a government entity should not determine what constitutes a racial slur. Further, the brief illustrates the ways in which the disparagement clause suppresses political speech, prevents the reclamation of terms from their pejorative use, and is so unconstitutionally vague that any trademark could be denied on the grounds that it offends some group or another."

Offensive Trademarks Are Free Speech - Reason.com: "In 2004 the U.S. Patent and Trademark Office agreed to register Heeb as the name of a magazine covering Jewish culture. Four years later, the PTO refused to register Heeb as the name of a clothing line conceived by the magazine's publishers, because the term is "a highly disparaging reference to the Jewish people."

Such puzzling inconsistency is par for the course at the PTO, which since 1946 has been charged with blocking registration of trademarks that "may disparage...persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." A case the Supreme Court will hear today could put an end to that vain, vague, and highly subjective enterprise, which sacrifices freedom of speech on the altar of political correctness. The case involves an Asian-American dance rock band called The Slants, a name that self-consciously repurposes a racial slur. In 2011 the band's founder, Simon Tam, tried to register the name but was rejected by a PTO examiner who deemed it disparaging to "persons of Asian descent." An administrative appeals board affirmed that decision, even while conceding that the band's name was "an attempt not to disparage, but rather to wrest 'ownership' of the term from those who might use it with the intent to disparage." The board said "the fact that applicant has good intentions underlying the use of the term does not obviate the fact that a substantial composite of the referenced group find the term objectionable."

In 2015 a federal appeals court agreed that Tam "may offend members of his community with his use of the mark" but noted that "the First Amendment protects even hurtful speech." The court ruled that the ban on registration of disparaging trademarks amounts to viewpoint-based speech regulation, which the Supreme Court has said is constitutional only if it is narrowly tailored to serve a compelling government interest. The interest in this case—protecting the feelings of people who might be offended by an outré trademark—does not even qualify as legitimate, let alone compelling. The PTO maintains that it's not really regulating speech, since Tam is free to call his band whatever he wants. But denying him the trademark-protecting benefits of registration clearly imposes a burden on his speech, analogous to denying copyright registration for a book that bothers a bureaucrat."


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