Supreme Court: Rejecting trademarks that ‘disparage’ others violates the First Amendment – Washington Post

The federal government has violated the First Amendment by refusing to register trademarks that officials consider disparaging, the Supreme Court ruled unanimously Monday in a decision that provides a boost to the Washington Redskins’ efforts to hang on to the team’s controversial name.

The ruling came in a case that involved an Asian American rock group called the Slants, which tried to register the band’s name in 2011. The band was turned down by the U.S. Patent and Trademark Office because of a law against registering trademarks that are likely to disparage people or groups.

In a ruling against the government, the court said the “disparagement clause” of the federal trademark law was not constitutional, even though it was written evenhandedly, prohibiting trademarks that insult any group.

“This provision violates the Free Speech Clause of the First Amendment,” Justice Samuel A. Alito Jr. wrote in a section of the opinion supported by all participating justices. “It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The ruling — and a second one Monday that struck down a North Carolina law restricting registered sex offenders from social-media sites — bolsters the reputation of the Supreme Court as protector of First Amendment rights.

“At a time when some have claimed that speech may and should be regulated or censored if it is offensive, hurtful, or dangerous, the justices’ firm insistence that governments may not silence messages they dislike is noteworthy and important,” Notre Dame law professor Richard W. Garnett said in a statement.

Redskins owner Daniel Snyder was more succinct in a statement: “I am THRILLED. Hail to the Redskins.” The team was not involved in the case at hand, although the court several times mentioned an amicus brief filed by the Redskins.

The case centered on the 1946 Lanham Act, which in part prohibits registration of a trademark that “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

But the founder of the Slants, Simon Tam, said the point of the band’s name is just the opposite — an attempt to reclaim a slur and use it as “a badge of pride.”

In a Facebook post after the decision, Tam wrote: “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. 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.”

Tam lost in the first legal rounds. But then a majority of the U.S. Court of Appeals for the Federal Circuit said the law violates the First Amendment’s guarantee of free speech. The government may not “penalize private speech merely because it disapproves of the message it conveys,” a majority of that court found.

(Jorge Ribas/The Washington Post)

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