Part Five:  The Final Pre-Argument Analysis

On January 18, the Supreme Court will hear oral argument in Lee v. Tam, the case that will decide whether the federal government’s denial of trademark registration to disparaging trademarks violates the First Amendment.

This case is extremely important — it will resolve the balance between free speech rights and government prerogative to deny benefits to those whose speech it finds disagreeable.  The outcome of this case will directly affect The Slants, the band whose trademark registration was denied because it was deemed offensive to those of Asian heritage, and Washington’s football team, whose trademark registration was cancelled as disparaging to Native Americans.  The case will also resonate more broadly to implicate any government program or government benefit where the government wishes to disassociate itself from objectionable/racist speech.

For an overview of the facts and legal issues in this case, see Part One of this series here.  In Part Two, here, I discuss the argument by Petitioner Patent and Trademark Office (PTO) that the government should be permitted to create an optional government program without endorsing racial slurs.  In Part Three, here, I present some of the best arguments in favor of the PTO, articulated in an amicus brief written by law professors who study trademark law.  In Part Four, here, I disagree with these law professors and explain why trademark law’s disparagement clause likely amounts to unconstitutional viewpoint discrimination.

In this post, I will present some of the best arguments in favor of Respondent Simon Tam, a member of The Slants, and some of the concerns with those arguments.

The argument that I believe should ultimately carry this case, touched upon in Parts Three and Four, is that trademarks and trademark registration do not constitute government speech.  Because trademarks are not government speech, the government cannot deny legal benefits on the basis of the viewpoint of private speech.

As stated by the American Jewish Committee’s amicus brief, the First Amendment protects The Slants’ ability to register its trademark because the government is not communicating any messages to the public via the trademark regime.  Trademark registration does not allow the government to control a mark.  The federal register of trademarks is simply a set of internal government files that list registered trademarks, not an indication of government speech.  Because trademark registration is not government speech (does anyone really think Coca Cola’s trademark is the government speaking through its trademark program?), the government cannot discriminate on the basis of the viewpoint of its speech.

The Slants also have a number of other important civil liberties organizations on its side advancing some version of this argument, including the American Civil Liberties Union and the Cato Institute.  The Cato Institute’s amicus brief asks a simplified but hard-hitting question presented:  “Does the government get to decide what’s a slur?” before illustrating the importance of allowing racial slurs to be reclaimed, especially in the boundary-pushing medium of rock music.  The Cato Institute filed its brief on behalf of “a basket of deplorable people,” humorously referring to Hillary Clinton’s criticism of supporters of Donald Trump as being racist, sexist, Islamophobic, and homophobic.

If the arguments of Respondent and amici are correct, the First Amendment does not allow the viewpoint discrimination inherent in the disparagement clause.  As a society, we will then be stuck with all sorts of unpleasant trademarks, any number of which are legitimately offensive to some segment of the population (the Cato Institute’s brief names, among others, Aunt Jemima, Uncle Ben, and the Keebler Elves).  Many rightly think that calling a football team The Washington Redskins is abhorrent.  That unpleasantness and its affect on our cultural consciousness is a real cost that should not be minimized.

This cost – of forcing the government to countenance offensive speech — resonates in other areas where the government isn’t speaking for itself but has some relationship to the speech.  In other countries, for example, parents are forbidden to name their children certain names that are considered offensive.  Although Americans generally find that level of government intrusion objectionable, consider the case of a New Jersey child, taken away from his parents, who was named Adolf Hitler.  The government does have an interest in not appearing to endorse racial slurs and stereotypes.

This interest, however, does not justify viewpoint-based discrimination on speech.  If the government wants to disassociate itself with that racist trademark, it can simply speak for itself and disclaim racial slurs.  The government cannot constitutionally deny the benefits of trademark registration to a football team or a band on the basis of its viewpoint.  Forbidding the PTO to deny trademark registration because the trademark may be viewed as disparaging sets the right balance between fundamental civil liberties, like free speech, and important government interests, like promoting tolerance and equality.

Although I believe the right outcome in this case is clear, the framework the Supreme Court uses to analyze this case is a complex question.  If the Court considers the denial of trademark registration to be a generalized free speech restriction, as the Federal Circuit did below, the Court would apply strict scrutiny to the disparagement clause.  Strict scrutiny is exacting constitutional review, under which any regulation must be invalidated as unconstitutional unless it is narrowly tailored to serve a compelling government interest.  Application of strict scrutiny will likely lead to invalidation of many other provisions of the trademark scheme, such as the prohibitions on registering scandalous trademarks, trademarks presenting the flags of other nations, and even potentially of deceptive trademarks.  This might be the wrong path to take, not simply because of the implications for the fate of the federal trademark scheme, but because trademark registration benefits do seem legally distinct from a generalized, censorious speech restriction.

However, if the Court considers trademark registration to be a government program (an argument I find compelling), then any content-based restrictions inherent in the trademark registration scheme would be permissible.  The disparagement clause would still be unconstitutional as a viewpoint-based restriction, and the PTO would be forced to register The Slants’ trademark.

The next blog on this case will come after oral argument, which should be lively.

(Here is the oral argument analysis.  Analysis of the opinion is now here.)