The US Supreme Court on Monday allowed an Asian American band to trademark its name The Slants, which had been rejected because it was deemed a racial slur.
The ruling is expected to benefit other organizations whose monikers have caused controversy, notably the Washington Redskins football team which has long faced protests by Native American activists who see the name as racist.
The Supreme Court decided unanimously that the US Patent and Trademark Office could not refuse the Portland, Oregon-based band the right to trademark the name The Slants, generally seen as a racial slur on Asians but which the group’s founder, Simon Tam, had said was an act of “reappropriation.”
Tam likened the use of the word to African Americans using the highly charged racist term “nigger” in their music.
“After an excruciating legal battle that has spanned nearly eight years, we’re beyond humbled and thrilled to have won this case at the Supreme Court,” Tam said in a statement.
“This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves,” he said.
“We found the Trademark Office justifying the denial of rights to people based on their race, religion, sexual orientation, and political views, simply because they disagreed with the message of these groups.”
Declaring that “music is the best way we know to drive social change,” The Slants dedicated its latest EP, “The Band Who Must Not be Named,” to the Trademark Office.
“Sorry if we try too hard / To take some power back for ours,” Tam sings on the opening track “From the Heart,” a catchy guitar-driven tune of post-punk.
“The language of oppression / Will lose to education until the words can’t hurt us again.”
Private, not government, speech
The case has drawn intense interest as it focused on the rights of free speech enshrined by the First Amendment of the US Constitution, at a time of heightened racial tensions in the country.
Supreme Court Justice Samuel Alito said the patent office could not refuse to register the group’s name because it was deemed disparaging, calling it “viewpoint discrimination” and writing: “Giving offense is a viewpoint.”
“We have said time and again that ‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,’” Alito wrote, citing previous decisions.
The government, which made its defense when Barack Obama was still president, said trademarks were government speech — not individual speech protected by the Constitution.
Alito was unconvinced, saying that granting a trademark did not involve government subsidies.
Justice Anthony Kennedy, in a concurring opinion, said the government can regulate speech only in narrow, already established areas such as fraud, defamation and incitement.
“It is a fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys,” he wrote.
Eight of the nine justices sided with The Slants. Neil Gorsuch, who was nominated by President Donald Trump, did not take part as he was not yet on the bench for the arguments.
Broad support for band
The patent office’s attorney had argued that the word “slant” was “a negative term regarding the shape of the eyes of certain persons of Asian descent” that has a “long history of being used to deride and mock a physical feature of those individuals.”
The rockers found broad support, including from the American Civil Liberties Union, which staunchly defends freedom of expression, and the premier business lobby, the US Chamber of Commerce.
Less prominent backers included Dykes on Bikes, a group of lesbian motorcyclists who managed to register the name after five years of fighting but is still battling to make its logo official.
The Slants is not the only name that has been rejected by the trademark office as too derogatory.
It refused to allow a Lebanese wine seller to use “Khoran” out of respect for Muslims, whose holy book bears a similar name and forbids drinking alcohol.
It also would not register the name “Porno Jesus” to a project said to be producing pornography with Christian values.