By Judge Jim Troupis, Special Guest Perspective for the MacIver Institute, June 22, 2017
"A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government's benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society."
(Justice Kennedy, joined by Justices Ginsburg, Sotomayor and Kagan in Slants decision, issued June 19, 2017. (Matal v. Tam).)
With that sweeping proclamation, the U.S. Supreme Court may have signaled a real, and welcome, return to the principles of free speech.
As with so much that transpires in the legal doctrine of free speech, it's not surprising that "slants", a derogatory term if there ever was one, will now enter the lexicon. In a decision with implications across a broad swath of 21st Century American life, the Court laid down a clear marker--"this far and no farther."
The Slants decision had its origins in long-held legal doctrine. Trademarks were a common form of property as far back as the Hudson Bay Company's search for beaver pelts. At what is known as "common law", one could acquire the rights to a name that identified products. The creation of the U.S. Patent and Trademark system came later, but the principle that identifiable marks were property of those relying upon them for commercial success predates the Constitution itself. And it was a trademark of "Slants" (the band name) that formed the predicate for this case.
An Asian-American rock band took on the name Slants to, in the Court's words, "reclaim" the term and in the process "drain its denigrating force." So, while the name was concededly offensive and disparaging, the band sought to protect it by registration at the U.S. Patent and Trademark Office. Not surprisingly, the USPTO declined their request. The law prohibits registration of trademarks that "disparage...or bring...into contemp[t] or disrepute" any "persons, living or dead." (15 U.S.C. Sec.1052(a)). An appeal followed, and it landed in the U.S. Supreme Court. READ it HERE
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