Supreme Court Strikes Down Ban On Trademarking “Offensive” Names
When an Oregon rock band calling itself “The Slants” attempted to trademark their name, the trademark office turned down the trademark registration in compliance with a law that banned the trademarking of offensive names. The term “slant” is considered a slur against Asians. The band filed a lawsuit and the Supreme Court has ruled that the so-called “disparagement clause” forbidding the trademarking of an offensive name violates the First Amendment.
"#Speech may not be banned on the ground that it expresses ideas that offend." —SCOTUS Justice Samuel Alito, https://t.co/669vDIjyLp ⚖️
— Tom Kiefer (@ThoSpeak) June 20, 2017
“It is not an anti-discrimination clause; it is a happy-talk clause,” Justice Samuel Alito wrote in the majority opinion after the 8-0 ruling that struck down the disparagement clause. He noted that the clause was too broad and could have also applied to phrases like, “Down with Homophobes.”
However, he also cautioned that the ruling does not automatically give carte blanche for offensive speech, saying that the government “has an interest in preventing speech expressing ideas that offend.” In other words, don’t expect that this ruling automatically guarantees groups like The Slants the right to deliberately go out of their way to use their speech to offend, provoke, or incite violence.
Implications Of The Ruling
This Supreme Court ruling could have an impact om organizations like the Washington Redskins football team, whose trademark of the name “Redskins” was canceled out of concerns that the name would offend Native Americans. The Redskins team is involved in a legal battle to regain its trademark.
Also at stake is the subjective nature of what individuals consider offensive. The Slants are all Asian-Americans who want to reframe the word in a positive light even though others of Asian descent may find the term offensive regardless of its context.
The problem of attempting to halt offensive speech is not even limited to trademarks. The idea that some forms of speech should be suppressed because it might be offensive to some groups has also caused some backlash against “Social Justice Warriors,” who are not above using violent threats to force conservatives like Ann Coulter to cancel appearances at colleges like Berkeley. This move was even rightly criticized by Bernie Sanders, who expressed regret that young liberals could not challenge her on an intellectual level.
Should the United States of America become a nation of citizens who are afraid to express an idea or opinion out of fear that it might offend somebody? It’s hopeful that America won’t. Americans should always recognize that an opinion might make them unpopular or be regarded as “politically incorrect”, but that does not mean that they do not have the right to hold or express that opinion.
As a band name, The Slants should be taken as no more worth being censured than AC/DC or Lady Antebellum. At most, it should be recognized that a private party is not required to provide another person or organization with a platform or an audience for the message that they want to convey. The government and its institutions, however, should strive to remain neutral in cases where the speech in question does not threaten violence or advocate for a violation of the rights of other people.
This also applies to intellectual property such as material that can be trademarked or copyrighted. The Supreme Court ruling means that groups like The Slants can register their names even though they might be offensive to others. It also means that the Supreme Court might be willing to push back against those who cry about being offended by words and threaten legal action when somebody expresses an idea that they find repulsive. That’s good news for anyone who recognizes that protecting one group’s right to live in peace should not mean trampling on the rights of another group who disagrees with the first group.
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