Education

Supreme Court Weighs Challenge to Restriction on Disparaging Speech

By Mark Walsh — January 18, 2017 5 min read
  • Save to favorites
  • Print

Washington

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.


Commenting has been disabled on edweek.org effective Sept. 8. Please visit our FAQ section for more details. To get in touch with us visit our contact page, follow us on social media, or submit a Letter to the Editor.


Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Teaching Webinar
What’s Next for Teaching and Learning? Key Trends for the New School Year
The past 18 months changed the face of education forever, leaving teachers, students, and families to adapt to unprecedented challenges in teaching and learning. As we enter the third school year affected by the pandemic—and
Content provided by Instructure
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Curriculum Webinar
How Data and Digital Curriculum Can Drive Personalized Instruction
As we return from an abnormal year, it’s an educator’s top priority to make sure the lessons learned under adversity positively impact students during the new school year. Digital curriculum has emerged from the pandemic
Content provided by Kiddom
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Equity & Diversity Webinar
Leadership for Racial Equity in Schools and Beyond
While the COVID-19 pandemic continues to reveal systemic racial disparities in educational opportunity, there are revelations to which we can and must respond. Through conscientious efforts, using an intentional focus on race, school leaders can
Content provided by Corwin

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Education Judge's Temporary Order Allows Iowa Schools to Mandate Masks
A federal judge ordered the state to immediately halt enforcement of a law that prevents school boards from ordering masks to be worn.
4 min read
Iowa Gov. Kim Reynolds speaks to reporters following a news conference, Thursday, Aug. 19, 2021, in West Des Moines, Iowa. Reynolds lashed out at President Joe Biden Thursday after he ordered his education secretary to explore possible legal action against states that have blocked school mask mandates and other public health measures meant to protect students against COVID-19. Reynolds, a Republican, has signed a bill into law that prohibits school officials from requiring masks, raising concerns as delta variant virus cases climb across the state and schools resume classes soon. (AP Photo/Charlie Neibergall)
Education Hurricane Ida Deals New Blow to Louisiana Schools Struggling to Reopen
The opening of the school year offered teachers a chance to fully assess the pandemic's effects, only to have students forced out again.
8 min read
Six-year-old Mary-Louise Lacobon sits on a fallen tree beside the remnants of her family's home destroyed by Hurricane Ida, in Dulac, La., on Sept. 4, 2021. Louisiana students, who were back in class after a year and a half of COVID-19 disruptions kept many of them at home, are now missing school again after Hurricane Ida. A quarter-million public school students statewide have no school to report to, though top educators are promising a return is, at most, weeks away, not months.
Six-year-old Mary-Louise Lacobon sits on a fallen tree beside the remnants of her family's home destroyed by Hurricane Ida, in Dulac, La., on Sept. 4, 2021.
John Locher/AP
Education Massachusetts National Guard to Help With Busing Students to School
250 guard personnel will be available to serve as drivers of school transport vans, as districts nationwide struggle to hire enough drivers.
1 min read
Massachusetts National Guard soldiers help with logistics in this Friday, April 17, 2020 file photo, at a food distribution site outside City Hall, in Chelsea, Mass. Mass. Gov. Charlie Baker on Monday, Sept. 13, 2021, activated the state's National Guard to help with busing students to school as districts across the country struggle to hire enough drivers.
Massachusetts National Guard soldiers help with logistics in this Friday, April 17, 2020 file photo, at a food distribution site outside City Hall, in Chelsea, Mass.
Michael Dwyer/AP
Education FDA: ‘Very, Very Hopeful’ COVID Shots Will Be Ready for Younger Kids This Year
Dr. Peter Marks said he is hopeful that COVID-19 vaccinations for 5- to 11-year-olds will be underway by year’s end. Maybe sooner.
4 min read
Dr. Peter Marks, director of the Center for Biologics Evaluation and Research in the Food and Drug Administration, testifies during a Senate health, education, labor, and pensions hearing to examine an update from federal officials on efforts to combat COVID-19 on Capitol Hill in Washington on May 11, 2021. On Friday, Sept. 10, 2021, Marks urged parents to be patient, saying the agency will rapidly evaluate vaccines for 5- to 11-year-olds as soon as it gets the needed data.
Dr. Peter Marks, director of the Center for Biologics Evaluation and Research in the Food and Drug Administration, testifies during a Senate health, education, labor, and pensions hearing to examine an update from federal officials on efforts to combat COVID-19 on Capitol Hill in Washington on May 11, 2021.
Jim Lo Scalzo/AP