Wednesday, January 18, 2017

The Patent and Trademark Office's Assault on Free Speech

Refused to approve the name of an Asian band called The Slants

In 1929, Chief Justice William Howard Taft convinced Congress to finance construction of “a building of dignity and importance” for the Supreme Court. He could not have imagined what the court will ponder during oral arguments this Wednesday. The case concerns the name of an Asian-American rock band: The Slants. And surely Taft never read a friend-of-the-court brief as amusing as one filed in this case. It is titled “Brief of the Cato Institute and a Basket of Deplorable People and Organizations.”

The U.S. Patent and Trademark Office is empowered, by the so-called “disparagement clause” of a 1946 law, to protect American sensitivities by denying trademark protection to “immoral, deceptive or scandalous” trademarks. These have included those that a substantial portion of a particular group perceive as disparaging that group — an ethnic, religious, national or other cohort. The PTO has canceled the trademark registrations of entities named Mormon Whiskey, Abort the Republicans, Democrats Shouldn’t Breed, Marriage Is For Fags, and many more.

The Cato/Deplorables brief urges compassionate libertarianism: “This Court should make the jobs of the employees at the … [PTO] much easier and put an end to the disparagement clause.” Government officials cannot be trusted to “neutrally” identify speech that disparages. Besides, “disparaging speech has been central to political debate, cultural discourse, and personal identity” throughout American history. The brief notes that a donkey became the Democratic Party’s symbol because someone called Andrew Jackson a “jackass” and he, whose default mode was defiance, put the creature on campaign posters. Entire American professions — e.g., newspaper columnists — exist in part to disparage.

Many rock bands pick names obviously intended to disparage or shock: Dead Kennedys, Dying Fetus, Sex Pistols, etc. Does the title of the best-selling book “Hillbilly Elegy” disparage a group? The Cato/Deplorables brief says: “One of this brief’s authors is a cracker (as distinct from a hillbilly) who grew up near Atlanta, but he wrote this sentence, so we can get away with saying that.” Then comes a footnote: “But he only moved to Atlanta when he was 10 and doesn’t have a Southern accent — and modern Atlanta isn’t really part of the South — so maybe we can’t.” Furthermore, the lead counsel on the brief “is a Russian-Jewish emigre who’s now a dual U.S.-Canadian citizen. Can he make borscht-belt jokes about Canuck frostbacks even though the first time he went to shul was while clerking in Jackson, Mississippi?”

When the government registers a trademark, it is not endorsing or subsidizing a product. It should not be allowed to use its power to deny registration in order to discourage or punish the adoption of controversial expressions. By registering trademarks, government confers a benefit — a legal right — on those who hold them. Trademarks are speech. The disparagement clause empowers the PTO to deny a benefit because of the viewpoint of the speech. This is unconstitutional.

Trademarks are not commercial speech — essentially, advertising — which is accorded less robust protection than that given to other speech. Eugene Volokh, a UCLA law professor and one of The Slants' lawyers, correctly says the band’s name is expressive speech. The Asian-Americans of The Slants agree. They say they adopted this name “to take on these stereotypes that people have about us, like the slanted eyes, and own them.”

The PTO applies the disparagement clause by assessing “what message the referenced group takes from the applicant’s [trade]mark in the context of the applicant’s use” and denies registration “only if the message received is a negative one.” The PTO, which has denied trademark protection for The Slants, has given it to a band named N.W.A. which stands for [a version of the N-word] Wit Attitudes.

The PTO’s decisions are unpredictable because they depend on the agency speculating about what might be the feelings of others in hypothetical circumstances. This vague and arbitrarily enforced law, if such it can be called, chills speech by encouraging blandness.



Bird of Paradise said...

Liberals want to end all copyrights so they can trash corperate america just like all socialists scumbags want to do

Anonymous said...

Can't they still use the name? There would just not have trade mark protection.

Anonymous said...

Progressives do not believe in individual intellectual property, they believe as the great zero quoted "you did not do that" or that everyone's accomplishments are a continuation of what was done before so no one should be able to profit from them, essentially pure socialism with the government owning everything. They forget that the larges such experiment, the USSR went down in flames and other examples such as Cuba and Venezuela are far less than paradise.


Anonymous said...

Anon 3:44,

You are correct. Without the trademark protection, people could steal their recordings, use their logos on merchandise, etc.

Tam has won this case at every level and it is hoped that he will win at the SCOTUS. If so, it will be another loss for the Obama administration who has managed to have the worst record at the Supreme Court going back to the 1950's which is where one researcher started looking.

The case also has implications for the Washington Redskins trademark. If the TPO can't deny the Slants a trademark because of the "offensive nature" of the name, they cannot deny the Redskins trademark protection either.

This is a case to watch.

Anonymous said...

The bureaucracies have become loaded with Liberal idiots.

Anonymous said...

As Trump promised, it's time to drain the swamp, especially the senior public service.