Constitutional Law, Free Speech, Politics

Supreme Court Rules Overwhelmingly To Strike Down “Disparagement Clause” Used To Bar Offensive Trademarks

Supreme CourtThe U.S. Supreme Court handed down a major victory for free speech on Monday in striking down a provision of the Lanham Act that barred registration for “disparaging” trademarks.  The decision came in Matal v. Tam, a case that we have been following.  I have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name. As predicted, the ruling answered  the question raised in the prior column in controversies like the denying of trademark protection to the Washington Redskins.  The decision is good news for Washington’s NFL team, which lost its trademark because its name is disparaging to Native Americans.


Tam is the “front man” for the Asian-American rock band The Slants and, in 2010, filed an application seeking to register the mark THE SLANTS.  Tam’s group called itself the Slants because it wanted to “reclaim” and “take ownership” of stereotypes about Asians.

The Lanham Act provision, known as the “disparagement clause,” bans the registration of a trademark that may disparage “persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  I have been highly critical of the provision for years in both columns and testimony before Congress.  Now it is gone but I remain perplexed how Congress failed to act on the matter to protect free speech for so many years.  One obvious reason is that many legislators lined up praising the denial of trademarks as entirely proper.   House Minority Leader Nancy Pelosi celebrated the denial of the trademark, which clearly contravened free speech protections.  Sen. Harry Reid not only praised the action but predicted that the Redskins name would be gone within three years. That was in 2014.  Democratic Senator Maria Cantwell said, “We’re so excited to know that finally people are recognizing that this issue can no longer be a business case for the NFL to use this patent.”

Fortunately, the Supreme Court has shown the faith and fealty for free speech that is so conspicuously absent in Congress.  Justice Samuel Alito wrote. “It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue. It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.”   Alito added: “The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates,” Alito added. “If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”

350px-Washington_Redskins_logo.svgThat was a view shared by eight out of nine justices — showing just how far these members and commentators were outside of the lines for free speech.  The Redskins should now be in a good position to dismiss the earlier ruling on its trademark. The matter will remain where it should have been left: to the court of public opinion.

The seven other members of the court agreed that the provision amounted to viewpoint discrimination, though four of the justices wrote separately to state that the holding made it unnecessary to give extended treatment to other questions raised by the parties.

In the separate opinion, Justice Anthony M. Kennedy said the registration had been denied not because the Slants intended to demean or offend, but because the government thought the trademark would have that effect on some Asian-Americans.

“The government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker’s audience,” Kennedy wrote.

All eight justices agreed that trademarks are not government speech, which would have required a different analysis.

Here is the opinion: Matal v. Tam

86 thoughts on “Supreme Court Rules Overwhelmingly To Strike Down “Disparagement Clause” Used To Bar Offensive Trademarks”

  1. I am sure if a very rich person of color would name his or her new team say….The Hooterville Honkies, or say The Columbus Crackers or The Ann Arbor Alt-Right with gross cartoon characters as mascots most here would be just fine with that. Then again after reading some comments, sure as hell they would be screaming all the way to the courts….

    1. They named their racist, single-cultural, discriminatory teams the NAACP, the Black Panthers, the Nation of Islam – Louis Farrakhan, National Council of Negro Women, Urban League, etc.

      And, in America under the U.S. Constitution, they are free to do so.

      The American Founders were similarly free to require, in the Naturalization Acts of 1790, 1795 and 1802, that citizens be “…free white person(s)…”

      In deed, since naturalization and citizenship required “free white person(s)” in 1863, when Lincoln issued the unconstitutional “Emancipation Proclamation,” the legal status of slaves changed from “property” to “illegal alien” requiring deportation.

      1. At least two and possibly three of the groups you named are not “single-cultural.” If generally advocating on behalf of a single culture is considered racist. You might add the Supreme Court.

  2. UPDATE –
    ________

    Mueller, Rosenstein, their staff of Clinton donors et al.

    must be impeached and convicted

    for abuse of the power of government against the People,

    as a conspiracy to conduct a coup d’etat in America,

    through execution of a scheme to falsely accuse and

    illegally remove a duly elected President of the United States.

  3. Welcome news, though sadly The Slants were deprived of their property and speech rights to their brand name for seven years.

  4. Freedom of Speech means Americans may insult the king and anyone else in the kingdom.

    The penalty for “impolite” behavior is ostracism.
    _______________________________________________________________________

    1st Amendment –

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

    or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and

    to petition the Government for a redress of grievances.
    _______________________________________________________________________

    People must adapt to outcome of freedom.

    Freedom does not adapt to people.

  5. Hey Zeus, full of juice, don’t let your meat loaf. Go to church on Sunday. Praise the Lard on Sunday and Crisco on Monday. Tell the turtles about this decision. They want an NFL team named after them. So does the river otter.

  6. The article is confusing. Slant is not the Redskins. The Redskins play in DC. The Supreme Court sits there sometimes. We need a native American Indian on the Supreme Court. Perhaps Uncle Clarence will retire.

        1. Turley himself is an unreflective racist who has pandered to Trump’s racist rhetoric toward Obama and has completely minimized the dangers of Trump’s racism to our democracy. Turley epitomizes what Critical Race Theory legal scholars have identified as the predominance of a white racial viewpoint that informs U.S. law (e.g., during slavery, legal segregation, legal discrimination, citizenship, etc) and is oblivious to the every-day realities of racism/discrimination that people of color endure on regular basis in America.

          This is exactly why Turley does not even remotely consider any of Trump’s racist discourse and actions to threaten our democratic systems or even remotely disqualify Trump’s capacity to fulfill his Oath of Office. There’s no doubt, given his legal background, if Turley were, say, African-American, instead of being a “conventional cracker,” he would be attacking Trump with all the powers of the law at his hands. But because Turley is so oblivious to race he can comfortable celebrate Trump’s election (as he himself has stated) and condone the crowds of racist followers he has without comment or compunction.

            1. You, yourself, are prima facie proof of my opinion.

                1. You celebrated your freedom to be racist by posting an ad of young black girl “Pickaninny”: ergo, your are prima facie of my opinion.

                  1. Try again. Define racism. Then, go on to argue what place fruit crate labels occupy in society and how showing a fruit crate label meets your standard. For kicks, is this one Islamaphobic?

                    https://s-media-cache-ak0.pinimg.com/564x/78/ab/ee/78abee41af2fa052ba9ac5cdf8c41fe2.jpg

                    And my goodness, please apply your expertise to this one:

                    https://cdn.shopify.com/s/files/1/0117/3662/collections/Gallery_Header_Image-Fruit.jpg

                    Squeeky Fromm
                    Girl Reporter

                    1. Thank you. You prove my point that Turley’s views are attractive to many racist commentaries and you need only scroll his twitter feed on many of his posts to confirm this. The fact that Turley MUST know this as well and has not in any disavowed it speaks volumes.

                      But, dig, you do need to get educated about ads and racism and sexism. This is taught in Communications 101 at every major university in the U.S. — with THOUSANDS of books and tens-of-thousand of peer reviewed essays that have definitively documented the historical links between ideologies of race and gender and advertising: Yep, Comm 101 shit taught to every entering freshman at every major university in America.

                      Peace Out Squeeky

                    2. chris marker – having taught Comm 101 I can tell you that most of those peer reviewed papers aren’t worth spit. And I wrote some of them, so I know.

                    3. @Chris Marker aka whatever

                      No, thank you for making my point. You are unable to articulate an argument in support of your position. Sooo, you call names some more and then head for the hills. You have confused “prima facie” and “ipse dixit.”

                      But don’t feel like the Lone Ranger there, because you have a lot of company in fuzzy thinking. Which is why the Redskin case came up in the first place. Because some people said it was “obviously” and “clearly” both racist and derogatory, but they could never really explain the why and how of their beliefs. You see, to members of a brainwashed cult, their little dogmas seem obvious to them. Because they have been indoctrinated. And they usually have their own little “cant” and terminology to reinforce the brainwashing. It is only to people outside the cult who ask hard and difficult questions.

                      Perhaps, if you have not finished college yet, you could still transfer to Evergreen College in Washington? They have a wonderful campus, where you would fit right in! Be sure to take a hockey mask and a baseball bat. Save your empty booze bottles, too! You can still make cocktails with them!

                      Squeeky Fromm
                      Girl Reporter

          2. Are you capable of composing one sentence without using the word “race”?

            1. I know, if you’re white, it’s usually really uncomfortable to have to deal with the “word” race: tough life you live.

                1. Wow — that’s some mighty white edifying going on there, Darren!

            2. I think we could all get a better understanding of the why “race is at the center of everything.
              Toward that end, I recommend viewing the “Spearchucker” scene in the film “Bowfinger”.
              ( Eddie Murphy and Barry Newman in this scene).
              It’s on the internet, but I can’t post the link.
              Would be helpful if somebody could post the link, to understand “what’s going on here”.

                1. Squeeky,…
                  I can’t open the link….limitations of my smartphone, I think.
                  If the scene mentions “Teddy Kennedy” at the end, that’s the right scene.

                    1. Oh Squeeky: I cited potential references to some 10,000 scholarly works you yourself could research at any major university library to completely support my analysis of the proven links between advertising in the U.S. and constructions of racism and sexism — but all you can do is: (1) ignore my evidence; (2) incorrectly define “prima facie”; (3) falsely assert I have to run away from my argument; (4) make an ad hominem critique of me that you, yourself, are criticizing.

                      I therefore have no choice to conclude that you are, in fact, a conceited dumb-shit racist.

                      But Peace Out anyway…

                    2. @Chris Barker

                      You cited to me works, that by your definition, presumably have “racist” advertising in them. Sooo, by your logic, if anything which presents racist advertising is an act of racism, and you are presenting them to me, then by extension, you are a racist.

                      See where the lack of an articulable basis for argument leads one! Sooo, quit citing stuff, and try to make an argument. It will be a good mental exercise for you.

                      Squeek Fromm
                      Girl Reporter

          3. I have not seen any instances of racism from President Trump. In all of his dealings he seems to treat all people just as “people”, to rise or fall on their own character. Isn’t that what we want?

        2. Freedom of thought, speech, religion, press, assembly and every conceivable “natural” or “God-given” freedom per the 9th amendment.

          Seems like that pretty much includes the right to “discriminate” and to be racist, as impolite as it seems to you.

          Muslims reject “infidels.”

          Jews reject the gentiles.

          People have opinions and beliefs and the freedom to hold them.

        1. Squeek, I just heard an explosion, I think it was Chris “Roach” Marker’s head exploding,

        2. Squeeky — I cited actual, peer reviewed scholarship, by major universities across the U.S. to support my analysis. “My definition” of this scholarship, as you ignorantly state, has no relevance to whether it is ipso facto evidence of the function of racist/sexist discourse in advertising. The scholarship stands on its own merits in this respect, again, is peer reviewed, published, and defined wholly outside of any aspect of my subjective agency. Now I know you’re too uneducated to understand what I’ve just written — but it’s 100% correct.

          Please, however, to debase and expose yourself as a racist in your attempts to celebrate “black girl Pickanninys” and the like.

  8. Privacy is every Americans right. Freedom of speech and freedom of the internet,. We must keep the internet free from the government. Stop the Government from spying on everybody, we have a constitutional right to our privacy. Use the search engine that does not change its results for political reasons and respects your privacy, just good old fashion results that are not tracked. Lookseek.com they have there own search results and don’t use other search engines data, Have a great day

    1. The founding fathers never heard of the internet. Laws created for the time should be reviewed and amended. This is a new time and place and this idiots site is going to kill people and segregate our country again. He wants a civil war he might just get it but I am hoping he is the first casualty. You all keep listening to him. I love watching stupid people recruit more stupid people. More for us smart people. Have a angry day . I am going to the beach and have fun in the sun. Haha

  10. Now ‘free speech’ is defined to include a right to intellectual property rents.

    The problem with the PTO decision was not that it contradicted principles of ‘free speech’, but that it incorporated the rancid cultural ideology of the administrative class into statutory law where it does not belong. (The statute itself is imprecisely worded as well).

  11. What a bunch of cry babies. Further more, free speech does not mean that you can say any stupid thing on your mind. Free speech is to give the American people the right to speak up/out in peaceful protest and not get beheaded.

    1. “Further more [sic], free speech does not mean that you can say any stupid thing on your mind.”

      *******************************’
      Sure it does LC and you’re a great practitioner.

    2. Free speech means free speech. Assault, battery and harassment of other people by speech are crimes. Defamation is actionable civilly.

      1. George:

        “Free speech means free speech. Assault, battery and harassment of other people by speech are crimes. Defamation is actionable civilly.”
        **************************************
        Except of course you can’t batter anyone with free speech since that takes an offensive touching. You can’t assault them unless you place them in REASONABLE apprehension of fear from an offensive touching. And you can’t harass someone merely by saying something offensive or mean to them. Other than that you’re close. And by the way, defamation involves allegations of fact and not opinions and they have to be objectively false. So it seems words do have meanings independent of George’s tenuous understanding of them.

        1. “…George’s tenuous understanding…”

          Touche’ I LIKE it!

          Please excuse me for taking license but it appears great damage can be done with the

          N-word weapon or a configured piece of rope of the same initial, N, which rhymes with loose.

          May I remind you that a young lady was convicted yesterday of telephonically “urging” as

          involuntary manslaughter? Physically, assault and battery must precede manslaughter and murder

          and must, therefore, also be possible semantically.

          Until such time as a successful appeal is concluded, we may safely assume

          that free speech may be considered a potential assault, battery, harassment, indeed,

          a murder weapon.

          I rest my case.

          I expect your concession and apology, Dear Sir, to be public and substantial.

  13. The sad part is that this even got to the Supremes.
    Sad that Congress couldn’t have made this right years ago and even sadder that there are lower court judges who did not summarily reinstate the trademarks.
    It just shows the sad state of politically motivated courts.

    1. The high crime of usurpation of the power of the legislative branch by the judges and courts of the judicial

      branch must have been prosecuted through impeachment and conviction long ago.

      America has but ONE legislative branch to which the judicial branch may remand flawed legislation.

      The judicial branch has NO authority to create or modify legislation.

      The PEOPLE, the SOVEREIGN, create legislation through representatives.

      “Legislation from the bench” is usurpation, insurrection and treason.

      The Imperial Judiciary has acted in gross violation of the Constitution for 228 years.

      The judicial branch has made subjective, political and ideological “decisions” since its inception.

      That miscarriage of American jurisprudence must be corrected with extreme prejudice.

      Article 2, Section 4

      The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors

  14. In addition to the all-important free speech aspect of the controversy, I’ve never understood the thinking informing the objection to the “Washington Redskins.”

    Critics of the name assert that it demeans Native Americans, but that clearly implies derogatory intent on the part of the name’s users, and why would anyone, whether the team’s owner or its fans, derogate their own team?

    The Supreme Court has made a freedom-supporting decision for a change.

  15. Remember the “Slants” are an Asian group, not white. They can call themselves whatever they wish. The redskins are NOT native Americans they are a football team. What black people chose to call each other or other wise use is not for white people to use, of course most of the readers here will never understand that. This from Indian Country Today: https://indiancountrymedianetwork.com/news/native-news/supreme-court-yes-trademark-disparaging-racial-slurs-like-r-word/?mqsc=ED3893858

    1. The VAST majority of Indians have NO problem w/ the name Redskin. So, there’s that sgtsabai, SJW extraordinaire.

      1. Prove it. You can’t. I have many American Indian friends and not one approves, neither do I. Creek/Choctaw, Wounded Knee II Vet.

        1. sgtsabai – did they charge you with the murder of the FBI agents? If they didn’t I don’t believe you.

        2. I have the same amount of Indian blood in me as Elizabeth Warren, sooo as a true Native American, I can say that I approve of the Redskin name and logo!

          Plus, if you think that I am just a silly squaw, and that my opinion doesn’t count, and that I should just STFU and go back to chewing deek skin to make it softer, then there is this:

          Nine in 10 Native Americans say they are not offended by the Washington Redskins name, according to a new Washington Post poll that shows how few ordinary Indians have been persuaded by a national movement to change the football team’s moniker.

          The survey of 504 people across every state and the District reveals that the minds of Native Americans have remained unchanged since a 2004 poll by the Annenberg Public Policy Center found the same result. Responses to The Post’s questions about the issue were broadly consistent regardless of age, income, education, political party or proximity to reservations.

          https://www.washingtonpost.com/local/new-poll-finds-9-in-10-native-americans-arent-offended-by-redskins-name/2016/05/18/3ea11cfa-161a-11e6-924d-838753295f9a_story.html?utm_term=.7adc4f06c626

          Squeeky Fromm
          Girl Reporter

          1. Thanks Squeek. He’ll just come back under a different name and keep lying.

        3. A Washington Post poll of Indians found 90% NINETY PERCENT do not find the Redskin mascot racist. Only white SJW’s are offended. Oh, and your imaginary Indian friends.

          1. I attended a church conference last weekend that featured Indians from a local tribe giving a presentation. The announcers several times before introduced them as Native Americans. When the first speaker began talking, she mentioned that her tribe preferred to be called Indians in general or more specifically, if known, as the tribes themselves such as the Cherokee or Chehalis.

            She continued with offering an invitation to join her in a prayer her nation follows. In the traditional and usual ceremony, an elder presents a “smudge pot” and inside places various dried leaves and vegetation, they pray, and the smoke carries their words to the sky above. Unfortunately, and rather embarrassingly, she had to inform us she couldn’t perform this ritual in full because someone complained that they would be injured by the smoke. What an insult! The political correctness of the meetings earlier was difficult to bear, but this completely took the cake. After she spoke, once again the announcer proclaimed her to be a Native American.

            It reminded me of back in 1999 the Makah here were to hunt a whale, the first time for nearly 70 years. Despite the fact this right was a strong cultural more in their heritage and that they were permitted by treaty to hunt wales (and being exempt from waling restrictions internationally) political correctness ran amok. Various liberal groups attacked the tribe and many tried to disrupt the hunt with legal attacks and used boats to disrupt the fishermen.

            I had to wonder how much more we were going to insult these people who are just trying to live their lives in the manner they choose and have done so for, I don’t know; centuries perhaps?

            1. Darren, what you have posted here sounds a lot more serious than the name of a sports team.

    2. I have many Haida friends who don’t care whether or not they are referred to as Indians or Haida, or some branch of the nation. I have many Black friends who prefer to be called Black and are a little ticked off at the African American label, Kwanza, convoluted name routines, and other stuff invented to separate. The way to sort this all out is to wear name tags. Mine would read Scottish, Ukrainian, Canadian, American. Our son’s would read Scottish, Ukrainian, Canadian, Colombian, Spanish, American. The farther one goes back, the longer the label.

        1. Though I will admit to traveling overseas many decades ago and saying I was Canadian.

    3. “Native American” is an oxymoronic contradiction in terms.

      There was NOTHING American before 1789, certainly not “natives.”

      There are NO people native to the land mass referred to as America.

      Americans are Europeans who colonized the land mass of the same name.

      The Indians, which the American government concluded treaties with, were savages

      (origin: silva, sylvan – “woods”) or nomadic Mongoloids who had traveled over

      the Alaskan Land Bridge from Asia millennia ago.

  17. I never understood how the “disparagement clause” was consistent with free speech. I’m glad SCOTUS have finally stricken it.

  19. Jesuit was originally a disparaging term which the order just decided to adopt and wear with honor. It has done them well since, mostly, except for that Pope thingy.

  20. If Black performers can rake in billions exclusively using the word n*^^er, then why not this band, the ‘Slants’? If ever there was logo protection it is the word n*^^er, allowed only by Blacks and Quentin Tarantino. There is a line that gets crossed and sometimes society has to determine just how sacred ‘free speech’ is; but this doesn’t even come close. Calling a team the ‘Redskins’ is a complement to the people who are complaining. It is linking the warrior and dominating images to the football team. Perhaps they should wipe that stupid grin off of the Cleveland team’s logo though.

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