Part Four: Is the Disparagement Clause Impermissible Viewpoint-Based Discrimination?

(The previous entries about Lee v. Tam, in order, are here, here, and here.)

This month, the Chinatown Dance-Rock band headlining the Lee v. Tam case released a song about its upcoming battle at the Supreme Court.  The band is fighting for the Patent and Trademark Office (PTO) to allow its name, The Slants, to receive federal trademark registration.  The PTO denied registration based on the fact that the term “Slants” is offensive to those of Asian heritage, despite the band’s desire to re-appropriate the term and undermine racial stereotypes.

To The Slants, this case is about the impropriety of the PTO’s use of trademark’s disparagement clause, which denies trademark registration to an applicant whose brand is racially disparaging.  However, the case has broader implications.  At issue is whether the disparagement clause itself violates the First Amendment.  The case will create precedent about when the government can deny trademark registration simply because it deems a trademark offensive to a relevant group.  Ultimately, this is civil liberties case about whether the government can deny benefits to groups so that the government can disassociate itself from what it deems racist messages.

Because this is a First Amendment case, much of the case turns on whether the disparagement clause is classified as a content-based or viewpoint-based restriction on speech.  This content/viewpoint distinction matters because, as mentioned in Part Three, the government is never allowed to discriminate based on the viewpoint of speech unless the speech is classified as the government’s own speech.  The government is allowed to separate speech based on content in the distribution of benefits as part of a benefit program, which is distinct from government speech itself.  However, if the Supreme Court deems the disparagement clause not part of a government program but a direct restriction on speech (as the Federal Circuit did), then the disparagement clause cannot discriminate on the basis of either content or viewpoint unless the speech restriction is narrowly tailored to serve a compelling government interest, the strict scrutiny test.  Regardless, in no case other than government speech can the government target viewpoint as a basis for speech preference.

Trademarks are surely not government speech.  The government is not using brand names to communicate its own messages, messages that are as contradictory as The Red Sox and The Yankees.  Viewpoint-based restrictions will likely therefore be deemed unconstitutional.  Now, if the Court deems trademark registration to be a government benefits program, then the disparagement clause can make content-based distinctions.  Thus, determining whether the disparagement clause is a content- or viewpoint-based restriction on speech is paramount to evaluating whether the disparagement clause will be invalidated as a First Amendment violation.

In close cases, the distinction between content- and viewpoint-based restrictions on speech continues to elude courts and scholars.  However, I do not believe this to be a close case, and a general understanding of the content/viewpoint distinction is instructive.  Content-based restrictions on speech regulate speech based on the speech’s topic or category, such a political speech, lobbying activities, or speech about the arts.  These restrictions, while still problematic, are permissible in some contexts, like when the government sets up limited forums for speech, so that the government can control what content/topics are discussed in these forums.

In contrast, the government is almost never permitted to discriminate against speech on the basis of viewpoint.  Viewpoint-based distinctions involve the actual opinions or views within a category of speech.  Where a restriction preventing “political speech” might be allowed in some contexts (although it would be too suppressive in others), the government cannot generally ban speech that is pro-Democrat while allowing speech that is pro-Republican.  That distinction is impermissibly viewpoint based.

In an important case addressing the content/viewpoint distinction, the Supreme Court held that a public university’s denial of student activities funds to a religious student newspaper was an impermissible viewpoint-based restriction on speech.  The Court overturned the university’s prohibition on giving money to student organizations that “primarily promotes or manifests a particular belief in or about a deity or ultimate reality.”  According to the Court, “religion” was itself a viewpoint, not just a content-based category of speech, because religion is one perspective to have on questions about the essence and meaning of life.  If the university wanted to fund some student publications, it had to make funding decisions independent of the viewpoint of the speech.

Viewpoint-based restrictions on speech are the most suspect type of speech restrictions because they evince the classic intent to censor unfavorable views that animates the need for free speech protections.  Just imagine if the Democratic Party were allowed to register a trademark, but the Republican party were not permitted to do so.

The disparagement clause, which denies trademark registration to marks that “disparage persons, living or dead, institutions, beliefs, or national symbols” does not implicate a category of speech.  Instead, the disparagement clause denies trademarks only to those who express a particular negative viewpoint about people or different groups.  As examples, trademark registration has been permitted to, for example, ASIAN PRIDE and BLACK PRIDE but denied to WHITE PRIDE, which was deemed disparaging.  The category of speech would be heritage pride, but certain viewpoints within this are more concerning/offensive/repugnant than others.  Although I have serious concerns about a group called WHITE PRIDE that I may not have about the other two groups, the government’s decision that one is disparaging and the others are not is unavoidably a viewpoint-based assessment.

In their amicus brief, discussed in Part Three, Law Professors make an interesting argument about why the disparagement clause is a content-based, not a viewpoint-based, restriction on speech.  They argue that the PTO denies trademark registration if a portion of the population (the portion referred to by the mark) would find the mark disparaging, not if the government itself disapproves of the message.  Similarly, Law Professors argue that The Slants’ own views are irrelevant, so their viewpoint isn’t being targeted for suppression.  The amicus brief cites to Boos v. Barry, where a Supreme Court plurality held that a statute banning signs critical of a foreign government displayed within 500 feet of that embassy was a content-based, not a viewpoint-based, restriction on speech.  The plurality, however, rejected the argument that the statute was not viewpoint based because “[t]he government is not itself selecting between viewpoints; the permissible message on a picket sign is determined solely by the policies of a foreign government.”  The plurality explicitly dismissed this view as a reason for deeming the statute content based.

Instead, the plurality deemed the statute content based because “[t]he display clause determines which viewpoint is acceptable in a neutral fashion by looking to the policies of foreign governments.”  In contrast, the disparagement clause does not give the PTO a neutral way of determining when a segment of the population would find a trademark, such as The Slants, or The Washington Redskins, to be disparaging.  The PTO cannot look to policies, but makes a determination based on what it believes will be racially offensive.  A judgment that the disparagement clause is not viewpoint based would impermissibly enshrine “the heckler’s veto.”  Courts do not allow suppression of speech simply because audiences react poorly to the speech.  Boos is therefore distinguishable from Lee v. Tam.

One final word.  Law Professors also argue that if the disparagement clause is deemed unconstitutional, the trademark provision barring registration of scandalous or immoral material would also be vulnerable to invalidation.  This view may be correct, although an easier case can be made that the government could determine whether material is scandalous in a viewpoint-neutral fashion.  Trademarks that take Taylor Swift’s side can be just as scandalous as trademarks that side with Kim Kardashian in their highly sensational feud.  Luckily, the Court is examining only the disparagement clause, not the other clauses of the trademark registration scheme.

Stay tuned next time for the best of the briefs on the side of Respondent, The Slants, and rebuttals to those arguments.

Part Five of this series is now here.