Vincent Blasi Discusses Protection of Offensive Trademarks and the Supreme Court

The Court’s latest ruling on speech marks another step in its effort to establish a jurisprudence of First Amendment harms.

In a unanimous decision that broadens the boundaries for free speech, the U.S. Supreme Court ruled in June that the government cannot refuse to register a trademark solely because it may offend others.

The Court sided with a rock band that calls itself The Slants. The band, whose members are Asian-American, said it chose the name to reclaim and recast the term as a source of racial pride. The U.S. Patent and Trademark Office refused to trademark the name, contending that federal law barred registration of trademarks that disparage individuals or groups.

The justices disagreed. Refusing to register the mark simply because it disparages “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend,” Justice Alito wrote in one of three opinions.

The decision, which has generated a series of requests to register offensive trademarks, represents the latest step in an effort by the Court to establish a jurisprudence of First Amendment harm, notes Columbia Law School’s Vincent Blasi, the Corliss Lamont Professor of Civil Liberties, who reviewed the ruling recently with colleagues and visiting scholars during a summer workshop series on public law.

In the Q&A that follows, Blasi, whose research, writing, and teaching focus on free speech and the First Amendment, discusses the case, Matal v. Tam.

This interview has been lightly edited for space and clarity.

What concerned the Court here?

The justices went out of their way to establish the strongest possible principle that giving offense cannot justify regulation of speech. Just because some people take offense at the use of the term does not, by itself, justify a decision to censor it. Justice Kennedy wrote separately to make the broader point that it’s not the government’s place to disfavor a message because of the views expressed.

The ruling rests in part on the whether registering a trademark constitutes speech by the government. How did that influence the outcome?

The government has lots of different roles and its authority to regulate speech varies with each of them. One is service provider, which is how the Court viewed the government’s capacity in this case. Registering trademarks helps consumers identify goods and services they may wish to purchase, but does not turn a trademark into government speech, the justices said. By contrast, when the government is speaking, it can favor certain ideas over others, which, of course, we need the government to do if we expect it to govern. The government also can be a patron, an employer, or provider of a forum, to name some others. By and large, you get different free-speech doctrines with each role.

After this ruling, could the government bar use of ethnic slurs in a classroom at a public university, which also puts the government in the role of service provider?

A public university almost certainly can decide that using ethnic slurs in class discussion is inappropriate. Though that would entail what’s known as viewpoint discrimination, the university could reasonably contend that slurs in the classroom interfere with providing the service. A trademark is different. Whatever one thinks about ethnic slurs, they have little to do with product differentiation or making the trademark regime work.

There was some discussion on appeal whether trademarks constitute commercial speech, which the government has more authority to regulate. How did the Court resolve that question?

The justices said there’s no room for viewpoint discrimination even in commercial speech, where some regulation of content is permitted. The band contended that trademarking its name would transform a slur into a term of empowerment and promote public discourse about a social issue. To the dismay of many First Amendment specialists, myself included, the Court has been trying to strengthen protections for commercial speech and this case presented a pretty good opportunity to do that.

Since the ruling, the Patent and Trademark Office reportedly has received requests to register trademarks that denigrate others. Is there any room left for denying some subset of offensive trademarks?

I don’t see any, given the way this opinion is written, which explains why I think we saw the owner of the Washington Redskins say the ruling vindicates the team’s position. Could the government deny a trademark because it’s graphic and astonishingly over the line, or would the justices think differently about it? Seems like they would not.

Vincent Blasi, who joined the Law School’s faculty in 1983, is the author of “Holmes and the Marketplace of Ideas,” “Free Speech and Good Character,” and “Milton’s Areopagitica and the Modern First Amendment.” His latest article, “Hate Speech, Public Assurance, and the Civic Standing of Speakers and Victims,” will be published in the summer issue of Constitutional Commentary.

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Posted on July 28, 2017

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