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Supreme Court: Racially Disparaging Speech Is Protected, Can Be Trademarked

As we have noted before, the right to free speech has its limits. Threats, obscenity, and defamation can all be illegal. But what about disparaging remarks or racial slurs? And what about government sanction of that speech?

The United States Patent and Trademark Office has a disparagement clause, allowing it to deny trademark applications that "may disparage ... persons, living or dead ... or bring them into contempt, or disrepute." But the Supreme Court today ruled the disparagement clause violates the First Amendment's Free Speech Clause, a ruling that could have an enormous impact the limits of free speech in trademark cases.

Belittling Band?

The disparagement clause had been used to deny an Asian-American rock band from trademarking their name, The Slants. The band's lead singer, Simon Tam, says he chose the name in order to reclaim the phrase and "drain its denigrating force" as a derogatory term for Asian people. Tam sued after the trademark application was denied, and a Federal Circuit found the disparagement clause unconstitutional.

The Supreme Court agreed. While conceding that "government is not required to subsidize activities that it does not wish to promote," the court noted that registration of a trademark "does not constitute approval of a mark," adding, "Trademarks are private, not government, speech." And the government's ability to regulate private speech is limited.

The Legal Angle

The Court was emphatic in its response to the argument the government has an interest in preventing speech that offends:

"And, as we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'"

The Court's ruling may open the door for more unpopular trademarks. The PTO recently used the disparagement clause to cancel trademarks held by the Washington Redskins, based on the fact that the name is disparaging to a "substantial composite" of Native Americans. But some are already noting that the Court's decision in The Slants' case may see those marks returned.

You can read the Court's full ruling below:

UNITED STATES PATENT AND TRADEMARK OFFICE v. TAM by FindLaw on Scribd