In 1929, Chief Justice William Howard Taft convinced Congress to finance construction of “a building of dignity and importance” for the Supreme Court. He could not have imagined what the court pondered during arguments last week.
The case concerns the name of an Asian-American rock band: The Slants. And surely Taft never read a friend-of-the-court brief as amusing as one filed in this case. It is titled “Brief of the Cato Institute and a Basket of Deplorable People and Organizations.”
The U.S. Patent and Trademark Office is empowered, by the so-called “disparagement clause” of a 1946 law, to protect American sensitivities by denying trademark protection to “immoral, deceptive or scandalous” trademarks. These have included those that a substantial portion of a particular group perceive as disparaging that group — an ethnic, religious, national or other cohort. The PTO has canceled the trademark registrations of entities named Mormon Whiskey, Abort the Republicans, Democrats Shouldn’t Breed and more.
The Cato/Deplorables brief urges compassionate libertarianism: “This Court should make the jobs of the employees at the … (PTO) much easier and put an end to the disparagement clause.” Government officials cannot be trusted to “neutrally” identify speech that disparages. Besides, “disparaging speech has been central to political debate, cultural discourse, and personal identity” throughout American history. The brief notes that a donkey became the Democratic Party’s symbol because someone called Andrew Jackson a “jackass” and he, whose default mode was defiance, put the creature on campaign posters.
Many rock bands pick names obviously intended to disparage or shock: Dead Kennedys, Dying Fetus, Sex Pistols, etc. The Cato/Deplorables brief says: “One of this brief’s authors is a cracker (as distinct from a hillbilly) who grew up near Atlanta, but he wrote this sentence, so we can get away with saying that.”
Trademarks are speech
When the government registers a trademark, it is not endorsing or subsidizing a product. It should not be allowed to use its power to deny registration in order to discourage or punish the adoption of controversial expressions. By registering trademarks, government confers a benefit on those who hold them. Trademarks are speech. The disparagement clause empowers the PTO to deny a benefit because of the viewpoint. This is unconstitutional.
Trademarks are not commercial speech which is accorded less robust protection than that given to other speech. Eugene Volokh, a UCLA law professor and one of The Slants’ lawyers, correctly said the band’s name is expressive speech. The Asian-Americans of The Slants agreed. They said they adopted this name “to take on these stereotypes that people have about us, like the slanted eyes, and own them.”
The PTO’s decisions are unpredictable because they depend on the agency speculating about what might be the feelings of others in hypothetical circumstances. This vague and arbitrarily enforced law, if such it can be called, chills speech by encouraging blandness.
The PTO encourages the belief that speech should be regulated hither and yon in order to preserve the serenity of those Americans who are most easily upset.
George F. Will is a columnist for theWashington Post Writers Group. Email: georgewill@washpost.com.
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