Mediaboss Marketing

The band 'The Slants' is taking their trademark fight to the Supreme Court. Despite making music for more than a decade, the Portland, Oregon-based band has been unable to get its name registered as a federal trademark. USA TODAY NETWORK

The Slants, of Portland Ore.(Photo: The Slants)

When Simon Tam founded his rock band and named it The Slants,the Asian-American musician was trying tore-appropriate an ethnic slur and turn it into something positive.

Many people may find the name offensive, and they have plenty of options. They can vote with their feet and deny The Slants an audience. Or launch a boycott. Or go to appearances and protest. Thats the beauty of the First Amendments guarantee of freedom of speech. The antidote to speech you find offensive is more speech.

But what the federal government did in 2011, when it found the name "disparaging," is offensive to this constitutional guarantee. The U.S. Patent and Trademark Office denied Tam trademark protection,citing a law that bars the government from approving trademarks that may disparage ... persons, living or dead, institutions, beliefs or national symbols."

Simon Tam, founder of The Slants band, at the Supreme Court in January 2017.(Photo: Yuya Matsuda)

Tam challenged the decision. And this month,after a long trip through the lower courts, the case landed at the Supreme Court, which will likely decide the case this spring. A trademark is a valuable commodity, giving the holder the exclusive right to use the name and legal power to sue others who infringe on that right.

No matter what the Patent and Trademark Office thinks of the name, government bureaucratsshouldnt be in the business of deciding what is and isnt disparaging to some group, or of protecting certain groups from getting their feelings hurt,which is essentially what the patent law allows.

USA TODAY

Deny trademark of hateful names: Opposing view

Popular, inoffensive speech seldom needs protection. The beauty of the First Amendment in a free society is that it protects unpopular or offensive speech, particularly from government regulation. The Supreme Court has said asmuch many times over many years.

The government tried to get around such strong affirmations of freedom of speech by arguing that a trademark denial doesnotrestrict free speech.The Slants can still use the name. It merely places a reasonable limit on access to a government program, Deputy Solicitor General Malcolm Stewart argued for the government.

Several justices didnt buy that defense. Justice Samuel Alito said the government was stretching the concept of a government program past the breaking point, noting that the government provides many services, such as fire protection,and could not choose to provide them only to some groups.

Justice Elena Kagan said the denial sounds like a fairly classic case of viewpoint discrimination, which is flatly unconstitutional. And Justice Ruth Bader Ginsburg questioned the laws vagueness and inconsistent application, pointing out that the patent office had both approved and rejected trademarks for the term hebe. Other trademarks, surely offensive to some, have been approved, includingYellowman, Retardipedia and Crippled Old Biker Bastards. Its all too arbitrary to pass constitutional muster.

The court's decision will affect other trademarks, some far more infamous and controversial. In 2015, a federal trial judge in Washington upheld the patent officescancellation of the trademark of the Washington Redskins football team. That appeal is pending at a federal appeals court.

Native Americans and many others find the teams name deplorable, including Tam and The Slants,whose website says redskin represents a long history of oppression.They can loudly protest, just as others can celebrate the name all without government interference.

And thats just the point. When the government denies a valuable benefit based on its arbitrary determination of offensiveness, everyone loses one of the Constitutions most cherished guarantees.

USA TODAY's editorial opinions are decided by itsEditorial Board, separate from the news staff. Most editorials are coupled with an opposing view a unique USA TODAY feature.

To read more editorials, go to theOpinion front pageor sign up for thedaily Opinion email newsletter.To respond to this editorial, submit a comment toletters@usatoday.com.

Read or Share this story: http://usat.ly/2jOYy2b

Continue reading here:
What's in a name? A 1st Amendment right: Our view - USA Today - USA TODAY