Win for the Redskins, The Slants … and Confederate Flag and Monuments

Matal v. Tam, decided by the Supreme today, opens with Justice Alito’s informative summary:

“This case concerns a dance-rock band’s application for federal trademark registration of the band’s name, “The Slants.” “Slants” is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force.

The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The case will allow The Slants to register their name with the U.S. Patent and Trademark Office—but the more notable win is for the Washington Redskins.

In 2014, the U.S. PTO revoked the registrations of their name. This decision ends a two-decade effort by Native American activists to cancel the team’s registrations as pressure to change the name.

Interesting to note, the Obama administration didn’t make up the disparagement clause—they did, however, broaden it. The disparagement clause was created in 1946, in the Lanham Act.

Until now, courts ruled that the disparagement clause in the Lanham Act didn’t violate the First Amendment because it never barred real-life use of the offending remark (e.g., Redskins, Slants, or Chief Illiniwek), nor does it prevent the owner from enforcing common law trademark rights.

Today, the Court rules that the ban amounted to “government speech.”

First Amendment lawyers wonder how far this new precedent will be stretched. Already being discussed: Walker v. Texas Division, Sons of Confederate Veterans, 576 U.S. ___ (2015). Two years ago, the Supreme Court ruled that Texas did not have to grant a request to create a Confederate flag license plate.

The Slants case will provide support for efforts by Confederate flag supporters to overturn government bans on these flags and monuments.