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Tuesday, February 7, 2017

How Will U.S. Supreme Court Straighten Out the Slants?



The First Amendment can be tricky.  On the one hand, we want to assert our right to speak out against the government, without retribution from it.  On the other hand, when people hear something that they disagree with, they want protection from it.  A case pending before the U.S. Supreme Court will test the limits of free speech that is sure to spark a furious debate.

The U.S. Patent and Trademark Office declined trademark protection to Simon Tam, founder of a rock band named The Slants.  He is Asian and he purposely chose the racist term to “re-appropriate” the ethnic slur and connect it into something positive.  He wanted to own it – literally.

He was denied in 2011 because the name was deemed disparaging.  The patent office citied a law that bars the government from approving trademarks that “may disparage…persons, living or dead, institutions, beliefs, or national symbols.”

This argument has many facets to it.  While Tam can still call his group whatever he wants and speak about it freely, he is not afforded the commercial value of holding the exclusive right to it. Thus, he has no ability to enforce lawsuits against others who use the name.  It’s as if the government is saying:  you can call yourself anything but you won’t necessarily be compensated for it.

The problem, with the government sticking its nose where it doesn’t belong is that it now forces itself to be the arbiter of racism, sexism, and good taste.  Names come to mean different things over time.  There are different intentions behind a name’s creation than how others perceive a name.  Do we really need to focus resources on this?

If you think a band called The Slants is offensive, you can certainly:

·         Boycott them
·         Lead protests against them
·         Write letters to them
·         Encourage those that hire them to fire them
·         Form an opposing band that reflects your values

By the government not treating The Slants the same as a band that calls itself The Rolling Stones or Hootie and the Blowfish, we create a second-class society and we all lose.  Everyone has equal rights to free speech, and this should extend to all legal rights afforded to others by the Patent office. 

A recent USA. Today editorial supported Tam to get his trademark.  It wrote: "Popular, inoffensive speech seldom needs protection.  The beauty of the First Amendment in a free society is that it protects unpopular or offensive speech, particularly from government regulation.  The Supreme Court has said as much many times over many years.”

Vanity license plates, under the dictates of 50 different states, at times have been regulated and left up to the judgment of the state as to whether an application is approved.  Though I think that is wrong too, I understand that the difference here is that a vanity license plate is its own entity and wouldn’t necessarily appear elsewhere.  But a bands' name is its name and is not separate from a trademark that is used to protect it.

No doubt when the court rules, it has to determine either that Tam’s band name is not offensive (arbitrary) or that the law supporting its denial is a violation of free speech rights. The decision will impact a controversial decisuon by a federal judge in 2015 that upheld the patent office’s cancellation of the trademark of the Washington Redskins football team.  Though the team’s name should be changed and seems insensitive, that decision should come from the team, not the government.

What the government should do, however, is get offensive town names, street names, and landmarks changed across the country.  Do you plan to vacation at Dago Creek, Arkansas; Jew Point Florida; or Wetback Tank, New Mexico?  How about Squaw Tit, AZ; Whitesboro, NY; Jewtown, GA; or Dead Negro Draw, TX?

Of course, some names have unintended consequences, such as foreign ones.  Condom, France, Fucking, Australia; and Hell, Norway and others mean nothing bad or suggestive in their native tongues.

There once was a street in England called Gropecunt Lane, but that was an intentional reference to prostitution.  It was last used in 1561 but it may now describe the address of Trump Tower.

I hope Tam wins his case to uphold his right to free speech to gain legal protection for The Slants.  I also hope he renames his band and promotes a more harmonious world.  But that choice is his right – not the government’s.

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Brian Feinblum’s views, opinions, and ideas expressed in this blog are his alone and not that of his employer. You can follow him on Twitter @theprexpert and email him at brianfeinblum@gmail.com. He feels more important when discussed in the third-person. This is copyrighted by BookMarketingBuzzBlog 2017©. Born and raised in Brooklyn, now resides in Westchester. Named one of the best book marketing blogs by Book Baby http://blog.bookbaby.com/2013/09/the-best-book-marketing-blogs 

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