Supreme Court rules government can't refuse disparaging trademarks

June 19, 2017 10:08 AM

This will reinstate trademark protections for an NFL team and a rock band with racial slurs as names.
posted by koavf (39 comments total)

The ruling was unanimous. Here are a few other takes:

• Reason
• NPR
• The Hollywood Reporter
• The Washington Post

posted by koavf at 10:12 AM on June 19, 2017

Here's the oral argument audio on Oyez (which gives you a running transcript and pictures of which Justice is speaking, making it easier to follow the audio).

From Justice Alito's opinion for the Court (there are two opinions, with different reasoning, even though the decision is unanimous):

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.

[T]he disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.

The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution. Is it conceivable that commerce would be disrupted by a trademark saying: “James Buchanan was a disastrous president” or “Slavery is an evil institution”?

posted by John Cohen at 10:13 AM on June 19, 2017 [4 favorites]

Dan Snyder remains horrible for gloating over this when it's a victory for a group trying to reclaim a slur for themselves. But more importantly, today I learned Simon Tam is a real person!
posted by capricorn at 10:18 AM on June 19, 2017 [8 favorites]

On one hand, it is the correct decision, more or less.

On the other hand, freaking Dan Snyder the the Washington DC football team really can just go jump off a cliff.
posted by k5.user at 10:19 AM on June 19, 2017 [22 favorites]

Weird question occurs to me: What will happen to the "Kimmy Schmidt" episodes on Netflix that make flagrant and disparaging use of the Redskins name? I'm assuming the producers felt they could make free with the name since it wasn't protected by trademark at the time of writing.

But wouldn't this have an impact on Netflix's ability to go on hosting and streaming the content without paying licensing fees to the Redskins? I would suspect the Redskins ownership would decline to license the name for that usage, even if the fees were large.

Any intellectual property lawyers in the house? What happens now?
posted by Construction Concern at 10:25 AM on June 19, 2017 [1 favorite]

Backstory and pre-SCOTUS interview with Simon Tam of The Slants at NPR Planet Money
posted by JoeZydeco at 10:26 AM on June 19, 2017 [1 favorite]

To be clear, although the decision will affect the NFL, the lawsuit itself wasn't about the NFL; it was about a rock band called the Slants. The NPR article linked in the first comment quotes the band's lead singer:

"We grew up and the notion of having slanted eyes was always considered a negative thing," Tam said in January. "Kids would pull their eyes back in a slant-eyed gesture to make fun of us. ... I wanted to change it to something that was powerful, something that was considered beautiful or a point of pride instead."

From Tam's Facebook post reacting to the court ruling:

For too long, people of color and the LGBTQ community have been prime targets under Section 2(a) of the Lanham Act, simply because we believe in the deliberate disarmament of toxic language and symbols. We’ve had to endure the Trademark Office working in isolation of our groups to navigate the troubled waters of identity politics and shifting language and culture, without any sense of cultural competency, consistency in enforcement of rules, and only giving the benefit of doubt to the most privileged members of society. Now, Americans can decide who should prevail in the marketplace of ideas rather than a lone examining attorney.

When I started this band, it was about creating a bold portrayal of Asian American culture. The establishment of an Asian American band was a political act in of itself, even though we never considered ourselves as a political group. However, as we continued writing music about our experiences, we realized that activism would be integrated into our art as well. I’m proud our band members have helped raise over $1 million for issues affecting Asian Americans, that we’ve worked with dozens of social justice organizations, and that we could humanize important issues around identity and speech in new and nuanced ways.…

Language and culture are powerful forms of expression and we are elated to know that the Supreme Court of the United States agree. Irony, wit, satire, parody...these are essential for democracy to thrive, these are weapons that neuter malice.

posted by John Cohen at 10:27 AM on June 19, 2017 [16 favorites]

Simon's take on the issue:

CHANG: How do you feel about being on the same side as the Washington Redskins?

TAM: I don't think I'm on the same side as them. I think that the team name is racist. I think it's - I think that Native Americans have made it overwhelmingly clear how they feel about not only that team but all sports in general that use human beings as mascots.

GOLDSTEIN: But, he says, the point of the First Amendment is to protect people who you don't agree with, who aren't on your side.

TAM: That's how free speech works. As a person of color who has experienced a lot of racial discrimination and been the target of a lot of racial slurs, people don't say, oh, wait a second, I have to register a trademark before I can call you chink. They just go ahead and do it. Racists are going to be racists whether they have a registration or not.

posted by JoeZydeco at 10:28 AM on June 19, 2017 [19 favorites]

The reasoning about the decision seems good: that the current overly broad interpretation that the SC is rejecting isn't the correct remedy for the problem of e.g. hateful logos being embraced by stubborn football organizations, because it applies far more broadly than that.

The actual situation sucks because it feels like the unapologetically racist bulk of the football organization's billions crouching in the shadow of a rock band. Hard to feel good about the bundle of outcomes there. Hope is that some more narrow process for saying "well, but, no, huge corporate entity, your racist bullshit is still a show-stopper" in the near future.

But then it's also hard not to read the just-throwing-something-out-there, just-thinking-of-a-random-example "X was a disastrous president" example in the decision in the current political vortex as a pointed forward-thinking example, so, well.
posted by cortex at 10:29 AM on June 19, 2017 [4 favorites]

“It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” -Alito.
posted by lstanley at 10:30 AM on June 19, 2017

But wouldn't this have an impact on Netflix's ability to go on hosting and streaming the content without paying licensing fees to the Redskins?

I don't recall them actually showing the official team logo on screen. Would a TV show actually have to pay a licensing fee merely to utter the name of an NFL team? That doesn't seem right.
posted by Atom Eyes at 10:33 AM on June 19, 2017 [1 favorite]

I feel like this would be a reasonable decision if the government were actually banning or restricting speech, but it is not. It is (was) refusing to grant a monopoly on that speech. Would it be a violation of the first amendment to simply do away with trademarks entirely? I think not. At no time is someone prevented from calling themselves The Slants or The Redskins absent trademark law, or even with trademark law as it stood prior to this decision.
posted by wierdo at 10:35 AM on June 19, 2017 [4 favorites]

To put too fine a point on it: What the fuck were the justices smoking that none of them grasped the difference between banning speech and not giving speech extra protection that most speech doesn't get anyway?
posted by wierdo at 10:37 AM on June 19, 2017 [5 favorites]

The cynic in me thinks that free speech is what people say they believe in when the people who agree with them don't have the political or economic clout to effectively punish those who's speech offends them. It's nice when that cynic is proven wrong. So I'm taking that positive away from this.

weirdo: That was addressed in the judgement:

JUSTICE KENNEDY, joined by JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, agreed that 15 U. S. C. §1052(a) constitutes viewpoint discrimination, concluding: (a) With few narrow exceptions, a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828–829. The test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed. Here, the disparagement clause identifies the relevant subject as “persons, living or dead, institutions, beliefs, or national symbols,” §1052(a); and within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus reflects the Government’s disapproval of a subset of messages it finds offensive, the essence of viewpoint discrimination. The Government’s arguments in defense of the statute are unpersuasive.

posted by Grimgrin at 10:40 AM on June 19, 2017 [1 favorite]

Would it be a violation of the first amendment to simply do away with trademarks entirely?
wierdo

But trademark registration does exist, and does grant extra privileges and protections to those who register. As long as that is the case, you can't decide who gets those extra protections based on the content of their speech.
posted by Sangermaine at 10:44 AM on June 19, 2017 [5 favorites]

Similarly to how, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The state can neither stop nor privilege speech or, when it does, it is only to the barest amount possible and necessary.
posted by koavf at 10:46 AM on June 19, 2017 [1 favorite]

From TFA:

[Simon] Tam insisted he was not trying to be offensive but wanted to transform a derisive term [, Slants,] into a statement of pride.

So, I think this is distinctly different from the Washington football team issue. Assuming Tam is sincere, and there's no reason to believe that an Asian-American musician would NOT be sincere with a stated purpose like that, this is a member of the referenced group finding a new use for a derisive term (see also N.W.A.).

The Washington football team has been asked by indigenous groups to change their name because the group the name references finds it offensive.

I totally get that intent can't always broadly figure into judicial opinions, but this is still an apples and oranges comparison. And fuck Dan Snyder.
posted by hanov3r at 10:52 AM on June 19, 2017 [3 favorites]

I've always rooted for the Intercourse, PA Shiteaters, and I'm not about to change now.
posted by The Underpants Monster at 10:57 AM on June 19, 2017 [2 favorites]

Grimgrin: I find a bare statement that an argument is unpersuasive quite unpersuasive.
posted by wierdo at 11:07 AM on June 19, 2017

today I learned Simon Tam is a real person!

Simon and I share a fence. When we were moving in, he introduced himself and I was certain he was fucking with me. We still joke about it.

Wouldn't the whole DC Football team thing be resolved by altering how NFL teams are owned? I mean, if it was publicly owned, like the Packers are, wouldn't it be notably easier to put pressure on them to change that shit? I mean, we subsidize the NFL enough that it should probably just be straight up nationalized.

But I am also woefully unaware at how football, let alone football ownership works.
posted by furnace.heart at 11:16 AM on June 19, 2017 [2 favorites]

But that is not what Kennedy, et al. offered. There is an argument there—you may disagree with it but it exists and it was made by a Supreme Court justice and had eight others concur.
posted by koavf at 11:16 AM on June 19, 2017 [1 favorite]

The NFL specifically disbars community ownership, other than Green Bay who were grandfathered in in the 1980s.
posted by koavf at 11:17 AM on June 19, 2017 [6 favorites]

Legality aside, I sincerely wonder at what point it will be too embarrassing for that particular football team not to change their name? It seems inevitable that it will happen, and it can be a major PR boost if handled well.
posted by Cranialtorque at 11:27 AM on June 19, 2017 [2 favorites]

Legality aside, I sincerely wonder at what point it will be too embarrassing for that particular football team not to change their name? It seems inevitable that it will happen, and it can be a major PR boost if handled well.

It will happen precisely when Dan Snyder ceases to own the team (likely due to his passing) and not a minute earlier. The man actively courts the controversy and seems to think it strengthens the team and its fanbase. He is a hateful human being.
posted by capricorn at 11:33 AM on June 19, 2017 [11 favorites]

Hanov3r: while the intended use of the trademarks may be distinct, this case results in identical treatment for both the REDSKINS mark and the THE SLANTS marks because the statute that forbid registration of the marks has been found unconstitutional.

Re: Unbrealable Kimmy: I haven't seen the recent seasons of Unbreakable Kimmy but what has been described in this thread would not be considered trademark infringement because it doesn't create confusion as to the source of the football services. That's really the only issue involved.
posted by cyphill at 11:35 AM on June 19, 2017 [2 favorites]

I think the Washington Racial Slurs will change their name when their shitheel of an owner dies or sells the team. I don't know if the Cobb County (formerly Atlanta) Stereotypes will do the same, as people seem less offended by them than the DC team.
posted by Hactar at 11:35 AM on June 19, 2017 [1 favorite]

Grimgrin: I find a bare statement that an argument is unpersuasive quite unpersuasive.
wierdo

Then you'll be pleased to learn that what Grimgrin quoted is just the holding, and that there are two entire opinions going into great detail why the government's argument was unpersuasive.
posted by Sangermaine at 11:45 AM on June 19, 2017 [2 favorites]

What the fuck were the justices smoking that none of them grasped the difference between banning speech and not giving speech extra protection that most speech doesn't get anyway?

That's not a relevant distinction here. The government can't withhold a benefit based on the content of speech.

Consider a world where that wasn't the case: we could, for example, withhold food stamps from people that criticize the government.
posted by jpe at 3:46 PM on June 19, 2017 [2 favorites]

we subsidize the NFL enough that it should probably just be straight up nationalized.

There would need to be a public purpose and the government would have to pay fair market value for it (the subsidies would not qualify). I'm not wild about the government paying billions for a forced acquisition of the NFL, but YMMV.
posted by jpe at 3:49 PM on June 19, 2017

I feel like this would be a reasonable decision if the government were actually banning or restricting speech, but it is not. It is (was) refusing to grant a monopoly on that speech.

It is interesting that this first amendment protection at the end of the day is tied closely to a trademark process that is designed to limit how people use legally protected language. So, we have a first amendment right to apply for trademark protections that limit how other people use our protected language. There's more nuancing of that here than this, but it does seem weird territory arguing for an absolute principle to support a process that limits the principle in some way, in order to protect a lower-level public interest in the commercial value of intellectual property. Not an unimportant interest, for sure, but certainly one that isn't codified in the Bill of Rights.
posted by SpacemanStix at 4:27 PM on June 19, 2017

Trademarks do certainly serve the interests of the producers of those marks but their function is to serve the interests of society in general—in a world without trademarks, it would be consumers who would be hurt the most because there would be no way to tell reliable goods and services from unreliable ones. Altho some of us are producers, all of us are consumers, so trademarks are the one area of "intellectual property" that is valid and really needs to have long-lasting and stringent protections.
posted by koavf at 5:00 PM on June 19, 2017 [2 favorites]

Rough draft for my Washington Racists logo.

It represents honor, respect and pride, as mascot Racist Danny will be glad to tell you.
posted by klangklangston at 5:40 PM on June 19, 2017

Just realized in conversation with my wife about this that several years ago I played an opening set at a show The Slants were headlining. Weird art space, previous opener was a rad weird performance artist, had forgotten all about it until now. That is all.
posted by cortex at 7:34 PM on June 19, 2017 [2 favorites]

It is (was) refusing to grant a monopoly on that speech. Would it be a violation of the first amendment to simply do away with trademarks entirely? I think not. At no time is someone prevented from calling themselves The Slants or The Redskins absent trademark law, or even with trademark law as it stood prior to this decision.

We shouldn't let a fanciful hypothetical (what if there were no trademark protection??) blind us to the real world, in which there is trademark law; it's administered by a federal agency; and anyone who can't register their trademark will be at an economic disadvantage as a result of being limited in their ability to enforce the trademark.* Since this economic disadvantage was imposed by government based on viewpoint, that's an infringement of the right to free speech. It's beside the point that you could imagine far worse infringements of the band's right to free speech like prohibiting them from using the name at all.

* At oral argument, it was noted that someone who doesn't have a federally registered trademark can still sue for trademark infringement, but will receive far less legal protection.
posted by John Cohen at 8:15 PM on June 19, 2017 [1 favorite]

Lawyers correct me if I'm wrong, but I assume if I want to criticize a trademarked brand I can use the trademark to my heart's content, as long as I'm not causing confusion about the brand itself.

Google™ can tell me not to use "google" as a generic term for "do a web search"--in fact they need to do so to maintain their trademark (cf Xerox and Kleenex). But they can't stop me from saying Google™ is an evil company paving the way for a mass surveillance state with their intrusive databases or even adding their logo intro illustration of an article that makes this point.

Not an unimportant interest, for sure, but certainly one that isn't codified in the Bill of Rights.

The right to trademarks isn't in the first amendment, but it is codified--in the original unamended constitution. So if anything it predates the codification of free speech.
posted by mark k at 10:52 PM on June 19, 2017 [1 favorite]

Trademark is a protection against consumer confusion - you can do anything you want with a trademarked product, providing you are not (1) implying that you are an official representative nor (2) falling into legal defamation. Most casual insults nicely sidestep both issues.

Copyright is different; copyright is use of the material (text, music, logo, whatever) outside of the bounds of fair use. But fair use includes criticism and commentary.

As long as the Netflix show doesn't come across as officially endorsed, it should legally be fine. The reason for avoiding use of trademarks is less often, "this might be a violation of IP law" than "a lawyer might make a coherent argument that this is a violation of IP law, and while it'd be easy to prove that it's not, that proof would require a lawyer of our own and a lot of time and hassle." During the no-trademark-exists period, there was no worry of a spurious lawsuit. Now... they'd have to decide if they want to get into a lawyer-war with Netflix, trying to claim that the critique/insults somehow violated either copyright or trademark law.

(IANAL.)
posted by ErisLordFreedom at 11:56 PM on June 19, 2017 [1 favorite]

it does seem weird territory arguing for an absolute principle to support a process that limits the principle in some way, in order to protect a lower-level public interest in the commercial value of intellectual property. Not an unimportant interest, for sure, but certainly one that isn't codified in the Bill of Rights.

Well, the First Amendment is a restriction on government that applies to all kinds of government actions; there doesn't need to be some other fundamental constitutional right at stake in addition to freedom of speech. And this decision isn't weirdly elevating trademark registration to the same level of constitutional concern as free speech. Instead, the Supreme Court is applying a general rule that government can't discriminate against certain viewpoints. The law at issue in this case was struck down not because there's something so special about trademarks, but because the government's process for approving/rejecting trademarks happened to involve discrimination against some viewpoints — like the Asian-American band's attempt to reclaim a racial slur by calling themselves the Slants in this case, or, in Alito's hypotheticals, names like "Slavery Is Evil" or "We Hate Sexists" or "End Homophobia."

Of course, even if you dislike what the Slants are doing with their name, the great thing about free speech is you still have many viable alternatives. One is to ignore them; don't buy their records or go to their concerts. Another is to speak out against them. Then maybe a productive discussion could be had. Restrictions on free speech tend to stop discussion of race, gender, sexual orientation, etc. from happening. And while some of the views that get expressed in that discussion might be offensive or wrong, the alternative is not for those views to disappear from the face of the earth; people would keep holding those views, but they'd fester underground without getting debunked, potentially allowing them to become more virulent. If you really believe in your views, you should be confident that they'll be strengthened through freedom of speech, including freedom for those who disagree with you.

In response to the "but the law didn't stop them from having the name!" point … well, that's technically true, but in reality, many bands in their position wouldn't have had the wherewithal to spend all that money and all those years litigating this case all the way up to the Supreme Court. Many bands in their position would have just picked another name. It's hard enough trying to make it as a rock band without exposing yourselves to other bands using the same name and potentially confusing customers if you start to get big.
posted by John Cohen at 8:53 AM on June 20, 2017 [2 favorites]

Yeah, kinda like the Washington Senators.
posted by clavdivs at 2:25 PM on June 20, 2017

Man, I just read my above statement and realized that I crossed both "bars" and "disallows". Embarrassing.
posted by koavf at 11:00 PM on June 26, 2017