WASHINGTON _ A trademark dispute involving an Asian-American band that calls itself the Slants provoked a lively Supreme Court argument Wednesday over freedom of speech, political correctness and the government's refusal to sanction what it sees as a racial slur.
The justices struggled over whether Congress' and the Patent and Trademark Office's refusal to register trademarks that disparage people or their beliefs violates the First Amendment.
On the one hand, several justices said the government usually cannot discriminate against people because it does not like their message. Justice Elena Kagan said the First Amendment has been understood to mean "you can't discriminate based on a viewpoint." The trademark office was saying it would register trademarks for people who say "good things" about Asian-Americans, but "not bad things," she said.
But Justice Sonia Sotomayor said the government was not restricting anyone's freedom of speech. "No one's stopping your clients from calling themselves 'the Slants' and from advertising that name," she said. "You are asking the government to endorse your name."
While many legal experts have assumed the high court would rule for the Slants and its First Amendment claim, that appeared less certain after the argument. Several justices said they were troubled by ruling the government may never approve some messages and not others.
Chief Justice John Roberts cited the example of a state university that establishes a lecture series to celebrate Shakespeare and refuses to hear from speakers who "disparaged" the great playwright. Presumably, that would not violate the First Amendment, he said.
The case before the court has been portrayed as an example of political correctness.
Simon Tam, the band's leader, says he chose the name to co-opt and defuse a demeaning term that had been directed at Asian-Americans. "We want to take on these stereotypes that people have about us, like the slanted eyes, and own them," he said when the case began.
But when he applied in 2011 to register the band's name as an exclusive trademark, the trademark office refused. It cited a provision in the Lanham Act of 1946 that says trademarks will not be issued for names that disparage people or "bring them into contempt or disrepute."
The decision was widely ridiculed, since the band members did not see their name as disparaging to Asian-Americans. If they were not offended, why should the trademark office take offense?
But when Tam appealed to the U.S. Court of Appeals for the Federal Circuit, its judges issued a broad ruling striking down part of the law as violating the freedom of speech. "It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys," the judges said.
Government lawyers say that ruling is wrong because an official trademark is the government's speech, not the private speech of citizens. They rely heavily on a Supreme Court ruling in 2015 that upheld in a 5-4 vote a decision by Texas authorities to refuse to issue a specialty license plate to a neo-Confederate group that included a Confederate battle flag.
"Just as any motorist who wished to display a Confederate battle flag on his vehicle could do so on a bumper sticker ... (Tam) can use the term 'slants' in any way he wants, even if his trademark cannot be registered," the acting solicitor general told the court. "And just as the state of Texas could permissibly disassociate itself from a symbol it viewed as offensive to the public, the federal government can permissibly disassociate itself from disparaging trademarks."
The case, Lee v. Tam, will be closely watched because of its likely effect on Washington's professional football team, the Redskins. The trademark office has moved to revoke the team's trademarked name on the grounds that it is demeaning to Native Americans. The team has an appeal pending.
