Ready or not - the Supreme Court has a message for us: It’s time to grow some thick skin. The First Amendment affords us the right to free speech; however, this right has been restricted in the past when certain words were found to be offensive or had a likelihood of creating danger. Following the Supreme Court’s decision in Matal v. Tam, “The Slants” is the first of many offensive trademarks to come.
Asian-American Oregon native, Simon Tam, tried to register the “The Slants” band name as a trademark in 2011. Tam’s request was denied by the U.S. Patent and Trademark Office after the name was deemed disparaging and offensive. However, Tam has assured his critics that he only wishes to “reclaim” the term and “drain its denigrating force as a derogatory term for Asian persons.”
In June 2017, the Supreme Court ruled in Matal v. Tam that the disparagement clause of the Lanham Trademark Act of 1946 violated the First Amendment's free speech clause. The provision prohibits the registration of any trademark that “may disparage persons, institutions, beliefs, or national symbols, or
In the court’s opinion, Justice Samuel A. Alito, Jr. noted that the denial of offensive trademarks, ”...offends a bedrock 1st Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
But, should other identity groups be worried to see the offensive trademark floodgates open? Probably. In fact, in 2014 the Washington Redskins football team had a trademark of its name cancelled after a number of complaints from Native American groups. This case was put on hold, due to the proceedings in Matal v. Tam, but action to reinstate the trademark are sure to be in motion.
In short, it is better to offend another person than the first amendment protection of free speech that is assured by the constitution. Alito said it best, “[w]e have said time and time again that the ‘public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers . . . .’”
Co-Authored by Ashton Cane