If you felt a rumble during the early hours of Tuesday, December 22, that was the earthquake touched off by the Court of Appeals for the Federal Circuit’s holding that a long-debated and high profile portion of the nation’s trademark law is unconstitutional. Depending on your point of view, it was either a great day for the First Amendment or a bad day for advocates of restraint on offensive speech. Of course the First Amendment is no friend of restraint, and the CAFC’s resounding message Tuesday was that there can be no peaceful coexistence between the First Amendment and Political Correctness.
Appellant Simon Shiao Tam is the founder of an Asian American rock band called The Slants. Tam applied to register the band’s name as a trademark with the U.S. Patent & Trademark Office. The Office refused registration, on grounds that the mark disparages persons of Asian origin or descent under Lanham Act Section 2(a), 15 U.S.C. § 1052(a), which precludes registration of any mark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
Mr. Tam’s closely-watched appeal proceeded through the Trademark Trial and Appeal Board and thence to the CAFC, whose majority opinion found the section’s “disparagement” clause to be an unconstitutional burden on free speech. In past challenges to Section 2(a), the government’s defense has been that a denial of trademark registration is merely a decision not to extend a particular government benefit, and is not a denial of any constitutional right because it leaves the trademark-owner free to use his mark without government registration. But the majority holding is that a denial of government benefits accorded to others, though not a prohibition of speech, nevertheless burdens the speaker—effectively acting as a penalty—and is thus sufficient to offend the First Amendment.
Of course the unmentioned elephant in the room is the Washington Redskins, whose trademark registration was canceled last year on the same grounds. But In re Tam is a more provocative case, because the owner of the rejected trademark is himself a member of the group the Trademark Office found likely to be offended by the mark. A key point in Tam’s case is that the adoption of the name The Slants for an Asian American rock band is an effort to “reclaim” a traditional epithet in the interest of turning it against its racist users and making it a point of pride for Asian Americans. Of course, not all Asian Americans agree; and the case itself remains as hotly debated as its recent outcome.
Most commenters predict that a Supreme Court hearing will be the next step, so the saga that arguably began with the first assault on the Washington Redskins trademark nearly two decades ago is far from over. But it may be that the ultimate solution to words that offend is not to ban them but, as the pioneering political philosopher Lenny Bruce suggested in one of his most notorious routines a half century ago, use them over and over again, in as many ways as possible, until they are stripped of their power to hurt.