Supreme Court Weighs Challenge to Restriction on Disparaging Speech

By Mark Walsh — January 18, 2017 5 min read
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The U.S. Supreme Court on Wednesday took up a case stemming from an Asian-American dance-rock band’s efforts to trademark its name—The Slants—which the band intends as a way to reclaim an ethnic slur, but which federal officials view as not worthy of protection because it disparages people of Asian ancestry.

The implications for education of the case of Lee v. Tam (No. 15-1293) may not be obvious, but they were lurking during oral arguments and in the multiple friend-of-the-court briefs in the case.

On the federal government’s side, Native American groups argue that a long history of offensive Indian-related school and college nicknames and symbols shows that the provision of federal trademark law that bars protection for disparaging names is a permissible regulation of speech.

“The use of Native American words and images as sports mascots demeans and dehumanize—thus entrenching racist attitudes,” says a brief filed by the National Congress of American Indians as well as the Cherokee Nation, Navajo Nation, and other tribes and groups.

The brief also argues that American Indian sports mascots negatively affect the self-esteem of Native American youths.

“As Native American children grow up surrounded by degrading representations and the trivialization of their culture, they may internalize a feeling of inferiority,” the brief says.

Those groups acknowledge that many school and college teams have dropped American Indian team names and mascots in recent years. The groups’ target in the brief is not so much The Slants, but the Washington Redskins franchise of the National Football League, which like the rock band has been engaged in a battle with the U.S. Patent and Trademark Office over protections for its name.

Under the Lanham Act of 1946, trademark registration may not be given to names and symbols “which may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

Lawyers for Simon Tam, the founder of the Eugene, Ore.-based Slants, argue that the band has sought to “reappropriate” a classic slur against Asians, just as other groups have sought to do with other racial or derogatory names.

The trademark office, as well as an agency appellate board and a federal appeals court, found that despite the good intentions of the band, the name The Slants was likely offensive to most people of Asian descent.

The Washington Redskins, meanwhile, are not directly involved in the Supreme Court case, but the court’s decision in the Tam case will likely affect the team’s own trademark battle, and the team filed a friend-of-the-court brief on the band’s side. In 2014, the trademark office invoked the anti-disparagement clause in canceling six separate trademarks that the Redskins, which has used the name since 1933, registered from 1967 to 1990.

Both the Redskins and The Slants, whose members aren’t thrilled that their battle is being equated with the controversial moniker of the football team, make the same central argument: The Lanham Act’s disparagement clause does not square with the First Amendment’s guarantee of free speech.

“The denial of registration is a serious burden, because registration confers important legal rights on trademark owners,” lawyers for Tam and the band argue in a brief. “The First Amendment does not permit the government to impose such a burden on speakers based on their viewpoint.”

“If our client had sought to register his band as ‘The Proud Asians,’ we would not be here,” John C. Connell, a Haddonfield, N.J., lawyer for Tam and the Slants, told the justices during the Jan. 18 arguments.

The band is joined by free speech advocates on the right and the left, some of whom argue that the free speech debate in the trademark context has implications for school speech as well.

“Denying any speech that may be disparaging the substantial benefits that accompany trademark registration broadly penalizes protected speech,” says a brief by the Alliance Defending Freedom, a Scottsdale, Ariz.-based group that frequently tangles with school districts over student religious speech. “Numerous lower courts have stricken similar restrictions even in the school context where speech is often less protected.”

The group cited, among other cases, a 2001 decision by the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, that struck down a a high school speech policy which prohibited negative, demeaning, and derogatory speech.

A brief by the Cato Institute on the side of the rock band notes that in the 1970s, Stanford University and Dartmouth College were the first educational institutions to drop “Indians” as their team names and mascots.

Those schools changed “to the (difficult-to-make-into-a-costume) incorporeal colors ‘Cardinal’ and ‘Big Green,’ respectively,” the cheeky brief says. “Today, dozens of other colleges, motivated by fears of angry donors or triggered students, have replaced similar mascots with equally bland alternatives.”

“Whatever one thinks about such changes, they have been accomplished without a bureaucrat’s deciding where to draw the line on what’s derogatory,” the Cato brief says.

During the oral arguments, the justices seemed a bit harder on Deputy U.S. Solicitor General Malcolm L. Stewart, who was defending the trademark office’s denial of protection for The Slants, than on Connell, although the lawyer for the band was shaky at times.

Stewart suggested another example in which he believe speech protectiosn could be upheld. Suppose a public university set aside a room where students could leave messages, but the university could dictate that no racial epithets and no personal attacks could be included?

“It would seem extraordinary to say that’s a viewpoint-based distinction that can’t stand because you’re allowed to say complimentary things about your fellow students,” Steward told the justices.

Justice Anthony M. Kennedy, a strong proponent of free speech protections, reacted sharply.

“So, the government is the omnipresent schoolteacher?” he said.

“No,” replied Stewart. “That analysis would apply only if the public school was setting aside a room in its own facility. Clearly, if the government attempted more broadly to restrict disparaging speech by students or others rather than simply to limit the terms under which a forum for communication could be made available, that would involve entirely different questions.”

A decision in the case is expected by late June.

A version of this news article first appeared in The School Law Blog.