Thursday, June 22, 2017

What This Supreme Court Ruling Means for the Washington Redskins, Other Brands Deemed ‘Offensive’

Should “offensive” brand names be allowed to get a federal patent?

The Supreme Court answered “yes” on Monday, handing a decisive win to Simon Tam and his band, The Slants.

Tam had tried to register a trademark for his band’s name, but the U.S. Patent and Trademark Office denied his application, citing a provision of the federal law known as the Lanham Act.

That provision of the law prohibits registering trademarks that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

Justice Samuel Alito wrote the unanimous opinion for eight members of the Court, finding the Lanham Act’s disparagement provision unconstitutional under the First Amendment’s free speech clause.

Justice Neil Gorsuch did not participate in this decision because the case was briefed and argued before he joined the court.

The disparagement provision, Alito wrote, “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

He further explained, “The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

This decision continues the trend of cases extending First Amendment protection for offensive speech, such as burning crosses, animal “crush” videos, violent video games, lying about military honors, and the Westboro Baptist Church protesting military funerals.

The Patent Office had argued that trademarks are a form of government speech, not private speech. When the government itself is speaking, the government can choose to favor or disfavor a particular viewpoint.

But the court rejected this argument, pointing out that slapping the government’s “seal of approval” on speech could lead to “silenc[ing] or muffl[ing] the expression of disfavored viewpoints.”

Alito asked, if trademarks are government speech, what message is it trying to convey to Americans by endorsing “Just do it, “Have it your way,” and “Think different” (trademarks held by Nike, Burger King, and Apple, respectively)?

Unlike other areas the court has recognized as government speech, trademarks are not “closely identified in the public mind” with the government.

Examples of government speech include advertisements promoting the sale of beef that were authorized by Congress and paid for by the Department of Agriculture, monuments donated to public parks, and license plates issued by states.

Alito explained that even if the Court used a relaxed standard of review for restrictions on commercial speech, the disparagement provision still violated the First Amendment.

Under Central Hudson Gas & Electric Corporation v. Public Services Commission of New York (1980), a restriction on commercial speech must be “narrowly drawn” to advance a “substantial interest.”

Alito maintained that the disparagement provision is too broad:

“[It] reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause … [I]t goes much further than is necessary to serve the interest asserted.”

Justice Anthony Kennedy wrote separately on this point (joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan), explaining that they would apply heightened scrutiny and that there should not be a “blanket exemption from the First Amendment’s requirement of viewpoint discrimination” for commercial speech.

Today’s decision will have implications for another case pending in U.S. Court of Appeals for the Fourth Circuit involving the Washington Redskins, which lost six trademarks for allegedly being offensive to Native Americans in 2014.

This cancellation meant that the team would be unable to invoke federal remedies in preventing others from selling merchandise or services that use the term “Washington Redskins,” thereby depriving the business of a valuable property right.

In Pro-Football, Inc. v. Blackhorse, the lower courts were looking at whether “Redskins” was viewed as disparaging by a “substantial composite” of Native Americans at the time the six Redskins trademarks were issued starting in 1967—not whether the term “Redskins” is viewed as disparaging by Native Americans today.

In fact, a Washington Post poll last year found that nine in 10 Native Americans say they are not offended by the name. The Fourth Circuit put the case on hold last fall while the Supreme Court was considering The Slants’ case.

Now, the Redskins’ case should move forward. It would be hard to square a ruling against the Redskins in light of the Supreme Court’s full-throated defense of free speech.



quanaoonline said...

hai phong ship chandler

Bird of Paradise said...

What every became of Common Sense? its become a victim of Political Correctness

Anonymous said...

The is monumental. When was the last time a unanimous decision was handed down in the Supreme Court? It is a poke in the eye for those who falsely preach discrimination at the cost of free speech even given the proviso's by three left members of the court.

Anonymous said...

When was the last time a unanimous decision was handed down in the Supreme Court?

Tam was heard in January of this year. Of the 8 cases heard in January, 5 were unanimous.

In February, 7 cases were heard. One has yet to be decided. Of the remaining 6 cases, 4 were unanimous decisions.

In March, 11 cases were heard. Two have yet to have published decisions. Eight of the remaining 9 cases were unanimous.

April saw 13 cases heard. Four have yet to have opinions published. Of the remaining 9 cases, 5 were unanimous decisions.

Want to go back to the start of the term? Here are the months with the number of cases and unanimous decisions"

Oct: 8 cases heard / 4 unanimous decisions.
Nov: 9 cases heard / 5 with unanimous opinions.
Dec: 6 cases heard / 4 with unanimous decisions.

As you can see, the number of unanimous decisions are well above 50% of the cases heard.

What has to be wondered is why this case took so long to come forward?

The Lanham Act is from 1946. From that time thousands of trademarks have been denied or denied after appeal and yet some rock group in 2011 pressed the issue of a first amendment violation?

It took 65 years for someone to say "this is not right and unConstitutional?"

The problem is not just the judges, the courts and the lawmakers, it is the public's apathy toward God given / natural rights.