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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