On Monday, the Supreme Court ruled that a law banning the registration of offensive trademarks was unconstitutional. The decision was a victory for the Asian-American dance rock band The Slants–and potentially the Washington Redskins.

Simon Tam, the band’s frontman, filed a lawsuit after the U.S. Patent and Trademark Office (USPTO) denied his application for a trademark for the name “The Slants.” The agency cited the Lanham Act, which prohibits trademarks “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.”

The court ruled in an 8-0 decision that the “disparagement clause” of the Lanham Act violates the First Amendment’s free speech clause. Justice Samuel Alito, who delivered the majority opinion of the court, said Tam chose the name of the band “to ‘reclaim’ the term and drain its denigrating force.” According to Alito, the ban on offensive trademarks “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The federal government had argued that trademarks are government speech, but Alito wrote to the contrary, saying “trademarks are private, not government speech.” Chief Justice John Roberts as well as Justices Clarence Thomas and Stephen Breyer were in agreement on the majority opinion.

While the justices reached a unanimous judgement, they were split on why they believed it violated the first amendment. In a concurring opinion, Justice Anthony M. Kennedy, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, wrote that the measure in question constitutes “viewpoint discrimination.”

Justice Neil Gorsuch did not contribute because he had not yet been confirmed as a justice in January when the court heard the case.

The Slants celebrated the victory with a lengthy statement following the ruling. “The Supreme Court has vindicated First Amendment rights not only for our The Slants, but all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination,” wrote Tam.

Tam said the band never considered itself a political group, but that “the establishment of an Asian American band was a political act in of itself.” As a result, the band has integrated activism into their work by raising awareness and funds for issues affecting Asian Americans.

“Music is the best way we know how to drive social change: it overcomes social barriers in  a way that mob-mentality and fear-based political rhetoric never can,” Tam said.

The Slants’ trademark case could also impact other controversially named groups like the Washington Redskins, which has been in jeopardy of losing its team name for being racially offensive.

In 2014, the Patent and Trademark Office canceled the team’s trademark because the team’s name is a derogatory term for Native Americans. The Redskins appealed the case, but the federal appeals court had delayed hearing it until the Supreme Court ruled in Tam’s case.

Redskins attorney Lisa Blatt said the Supreme Court’s decision “resolves the Redskins’ long-standing dispute with the government.”

“The Supreme Court vindicated the team’s position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government’s opinion,” said Blatt.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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An Asian-American dance rock band known as The Slants is one step closer to securing a trademark for its name. But a victory for them could have some unintended consequences. The group recently argued its case to the Supreme Court after a years-long legal battle that began when the U.S. Patent and Trademark Office (PTO) denied the band’s application to trademark its name, which is intended to reclaim an anti-Asian slur.

According to the PTO, granting the trademark would be prohibited by the 1946 Lanham Act, which forbids the “registration of marks considered scandalous or immoral” or language that may “disparage” a group of people, like Asian-Americans.

But the Washington Post reported that during an oral argument on Wednesday, the majority of justices seemed to come down on the side of The Slants, who argued that blocking the trademark would violate the First Amendment. Justice Elena Kagan pointed out that the PTO refusing to trademark speech it viewed as negative would be “viewpoint discrimination.”

On the other hand, Justice Sonia Sotomayor said that “no one is stopping” the band from calling itself The Slants, and that pushing for a trademark would be “asking the government to endorse” the name. But approving a trademark for The Slants might open the door for the PTO to grant trademarks for other offensive terms (although Justice Ruth Bader Ginsburg noted during the arguments that the band’s intent was not to be disparaging).

A win for The Slants in Lee v. Tam could also mean a win for the Washington Redskins, which was denied a trademark in 2014 for the same reason. The football team filed an amicus brief–a document submitted by a party that is not involved, but has a strong interest in the case–to support the band.

The support from the Redskins is ironic, considering the fact that the team has come under fire for spreading Native American stereotypes, while The Slants prioritize combating racism. The band’s front man Simon Tam has explicitly tried to distance himself from the Redskins’ case and its owner Dan Snyder. “I don’t want to be associated with Dan Snyder,” Tam told the Washington Post.

Victoria Sheridan

Victoria is an editorial intern at Law Street. She is a senior journalism major and French minor at George Washington University. She’s also an editor at GW’s student newspaper, The Hatchet. In her free time, she is either traveling or planning her next trip abroad. Contact Victoria at VSheridan@LawStreetMedia.com.

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