Americans generally disapprove of racial slurs. Someone who utters one in the company of others may provoke awkward silence, blunt criticism, loud outrage or worse. Social ostracism, organized protests and loss of employment may result as well. Bill Maher had to apologize after his jocular use of the N-word on his HBO show “Real Time.”
But one method of deterring such language is off-limits: government action to suppress it. Under our Constitution, offensive epithets may not be outlawed. In the immortal words of Supreme Court Justice William Brennan, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
The court reaffirmed that view Monday when it said the federal government may not deny trademark protection to an Asian-American rock band that goes by the provocative name the Slants. By using that word, the band intended to mock racists and convert the slur into “a badge of pride.” In the same vein, it gave its albums titles like “The Yellow Album” and “Slanted Eyes, Slanted Hearts.”
But the federal trademark office rejected the Slants’ attempt to register their name. It cited a federal law denying protection for any trademark that “may disparage” people or groups “or bring them into contempt or disrepute.”
Never mind that the purpose of the name in this case was just the opposite — to deprive the term of its power to wound. The important point is that the government chose to penalize the band because its name would offend some people. And that offended the First Amendment.
Trademarks are an ancient tool that serves to protect companies and consumers by preventing confusion and deception. They allow private firms to distinguish themselves from their rivals and to prevent counterfeiting. All of this fosters healthy commercial competition, to the benefit of ordinary people.
The trademark office, however, argued that by granting the trademark to the Slants, it would be effectively lending the term a government imprimatur. The court, it noted, has ruled that states can control the messages on vehicle license plates because the plates are mandated, produced and owned by government bodies.
But the Supreme Court, by an 8-0 vote, said this case is different. It noted that the government “does not dream up these marks, and it does not edit marks submitted for registration.” Wrote Justice Samuel Alito, “If trademarks represent government speech, what does the government have in mind when it advises Americans to ‘make believe’ (Sony), ‘Think different’ (Apple), ‘Just do it’ (Nike) or ‘Have it your way’ (Burger King)?”
The decision has obvious implications for the NFL’s Washington Redskins, whose trademark protection was canceled in 2014 on grounds similar to those the government offered here. The team lost a decision in a district court, but its chances of winning suddenly look very good.
When the Slants perform, anyone who objects to their name is free to boycott, protest or mobilize criticism on social media. But using the power of the federal government to punish them should not be an option. Thanks to the Supreme Court, it no longer is.
FROM AN EDITORIAL IN THE CHICAGO TRIBUNE