Part Two: Offensive Speech Connected with Government Approval

This blog post is the second in a series on Lee v. Tam, a case involving whether the Patent and Trademark Office (PTO) can deny registration to a trademark for the dance-rock band “The Slants.”  The first part of this series provided an explanation of trademark registrations and a broad overview of the weighty legal question that the Supreme Court will confront in Lee v. Tam.  This second part of the series addresses the difficult issue of how much control the government can constitutionally exercise over speech, especially speech that many find offensive, to which the government extends legal benefits.  Later blogs will cover other issues explored by the merits briefs and amicus briefs, questions by the Justices during oral argument, and larger implications for the intersection of free speech rights and government power.

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The briefs have been filed on the Petitioner PTO’s side in Lee v. Tam, and there are a number of excellent arguments made by the PTO and amici.  One of the most intuitively compelling of those arguments, made in the PTO’s brief, is that Congress should be permitted to “create an optional program of federal trademark registration without opening that program to racial slurs and other disparaging marks.”  In other words, Congress should be permitted to grant the benefits of trademark registration as part of a government-funded program only to those who do not use racially disparaging trademarks.

Although this is a difficult and nuanced issue, I believe this argument should ultimately be unavailing.  Yes, trademark registration is a government benefit, and the government may wish to disassociate itself from offensive trademarks.  However, the government cannot constitutionally discriminate on the basis of viewpoint in ways completely unrelated to the purpose of trademark when administering its registration benefits.  During a time when many in this country are concerned about authoritarian government control and abridgment of First Amendment freedoms, granting the government the power to regulate speech (even offensive speech) based on a loose government association with the speech will corrode free speech rights in many areas beyond trademark registration.

The PTO’s argument hinges on cases that allow the government to curtail particular viewpoints when it provides subsidies as part of government programs.  For example, in Rust v. Sullivan, the Supreme Court upheld a federal statute that provided funding for family planning so long as none of the funds were used to provide abortion services or counseling.  The Court held that Congress may constitutionally restrict counseling on abortion services because Congress’s funds were intended for preventative family planning, and it need not subsidize speech on post-conception family planning.  Congress is permitted to fund one activity to the exclusion of another, even if this leads to discriminating against speech on the basis of viewpoint.

Cases like Rust and Regan v. Taxation with Representation (which allows the government to grant tax-exempt status to organizations only if they do not engage in substantial lobbying) are distinguishable from the trademark registration context in significant ways. First, the government is not funding trademark registration as part of a government program, but has created a legislative scheme that allows registered trademark users particular legal rights in court.  As a result, trademark registration does not implicate the government’s ability to use its own funds to subsidize particular activities in the same way.  Trademark registration does grant a legal benefit, but generally speaking, as discussed in my earlier post on Lee v. Tam, the First Amendment does not distinguish between granting legal benefits and attaching legal penalties — both are subject to strict scrutiny when the government discriminates on the basis of viewpoint in assigning legal entitlements.

Second, even if trademark registration were considered a government subsidy program, the government is not permitted to use its program to restrict speech indirectly in ways unrelated to the purpose of the program.  The government likely could not, for example, allow funds to health care providers for preventative family planning services as long as the health care providers were not Democrats.  This is an extreme and obvious example, but it does help illuminate the principle.  The purpose of trademark law is to avoid consumer confusion when purchasing goods.  When a consumer goes to see the band “The Slants,” based on a flyer, the consumer wants to be sure that she is actually viewing the band whose reputation caused her to buy tickets.  Allowing registration of trademarks deemed offensive by the PTO in no way undermines this purpose or redirects funds away from the reason trademarks are registered.  A viewer of Washington’s football team, even if highly offended by the team’s name, can be sure he is viewing the correct team.  Trademark registration allows the team to protect that interest — on its own behalf and on behalf of consumers.

In making its argument that it need not subsidize racially offensive speech, the government relies on cases where the government’s approval is highly connected to the speech, such as Walker v. Texas Division, Sons of Confederate Veterans.  In Walker, the Supreme Court held that Texas may prohibit vanity plates bearing the Confederate Flag, because the speech on license plates is considered government speech.  The association between trademarks and government speech is much more attenuated than the association between mandatory license plates and government speech.  Walker should indeed be the outer limit on when speech belongs to the government.  Once speech is deemed to come from the government, it can discriminate on the basis of viewpoint and make essentially unreviewed decisions about which speech to permit and which speech to prohibit.

Trademarks are the creation of private individuals and companies.  They represent competing companies, artists, and brands with a variety of ideas and approaches.  Trademarks are quintessentially private speech.  If the Court allows the government discretion to discriminate on this speech in ways unrelated to consumer protection, simply because the government does not approve of the speech, a wide swath of speech with loose government associations would be compromised.  Student activities funds at public universities, for example, may be at risk of government viewpoint discrimination.  Copyrights could be considered government funded and subject to offensiveness tests (however, an amicus brief written by law professors, which I will discuss in a later post, argues that analogies between trademark and copyright are flawed).

The solution to the government’s real quandary — that the PTO does not want to register racial slurs — is for society to recognize that just because a private individual receives some government legal entitlements when speaking does not mean the government approves of the speech.  This way, the government cannot decide which speech has greater access to the marketplace of ideas, unless the government truly is speaking for itself or funding programs that necessarily exclude opposing viewpoints.

The third part of this series is here.