The federal government is in court to enforce its claim that approving a trademark makes that speech the government’s own in a fight over a band name, the Slants.
The case that also could affect the NFL Washington team’s name, the Redskins.
But privacy experts are arguing, through a friend-of-the-court brief, that if that’s the case, the government already has claimed as its own some mighty strange statements, such as “Satan’s Pony.”
That’s a trademark that the government already has approved for a brand of beer.
“There is more than a hint of absurdity to the government’s position,” according to the Electronic Frontier Foundation and the Thomas Jefferson Center for the Protection of Freedom of Expression.
“Our brief discusses an unusual but important question: are registered trademarks government expression? It is important to get the dividing line between government and private speech correct. This is because, while the government doesn’t get to control what you say, it does get to control what it says. As we argue in our brief, categorizing registered trademarks as government expression would threaten speech in many other areas.”
The argument continued: “If it is indeed true that registered trademarks carry the imprimatur of government approval, then the United States has signed on to some quite surprising messages. You can find a registered mark that says CAPITALISM SUCKS DONKEY BALLS (perhaps while wearing a GANJA UNIVERSITY sweatshirt and sipping SATAN’S PONY beer). Does the existence of this trademark convince you that the U.S. government has forsaken capitalism?”
WND reported when the U.S. Supreme Court agreed to review the case, which alleges the government is improperly censoring the trademark for a band named the Slants.
According to the Rutherford Institute, which filed a friend-of-the-court brief in support of the band, the censorship “openly discriminates against speech on the basis of content and viewpoint, violating the most fundamental constitutional guarantees to freedom of expression under the First Amendment.”
The Asian-American dance rock band sued after the federal government, through its U.S. Patent and Trademark Office, censored it.
The government contends the name might disparage or offend people.
It’s the same issue being raised in an active nationwide campaign against the name of Washington’s NFL team.
“Whether the debate is over a trademark for The Slants or the Redskins, or a specialty license plate for the Sons of Confederate Veterans, the sticking point remains the same: How much do we really value the First Amendment, and how far are we willing to go to protect someone else’s freedom of speech, even if that speech might be offensive to some?” asked constitutional attorney John W. Whitehead, president of the Rutherford Institute.
“Whatever the rationale for criminalizing speech, the end result remains the same: outright censorship and the creation of a class system that renders speech perceived as politically incorrect, hateful or offensive as inferior and less entitled to the full protection of the law,” he said.
A federal appeals court had ruled in favor of The Slants, but the Obama administration appealed to the Supreme Court.
The institute explained the background: Simon Shiao Tam is the front man for the band. He is of Asian descent and heritage and has said the name was chosen because he and the other members wanted to “take on” the stereotypes of Asians and “own them.”
He also said he is proud of the Asian heritage, and the response he’s gotten to the band’s name from the Asian community has been positive.
The government, however, said it was refusing permission to trademark the name because it “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
EFF argues the government is claiming that trademark registration is “a kind of Midas touch whereby the expressive content of the trademarks themselves becomes government expression.”
“If this argument prevailed, it would create a dangerous precedent for all kinds of areas where the government engages in permitting and regulation. For example, a permit allowing a street march does not make the message of the protest government expression. If it did, cities and towns could quickly crack down on messages they don’t like,” the organizations argue.
Prominent legal scholar and commentator Eugene Volokh, who has worked on the case, summarized the main points of the lower court’s decision in favor of granting a trademark on the name.
He said the discrimination is based on viewpoint and the trademark clearly is private speech, which is more protected than government speech.
“The law isn’t saved by the ‘commercial speech’ doctrine,” he wrote. “Though trademarks are often used as ‘commercial speech,’ which is to say commercial advertising, and such speech is generally somewhat less protected than noncommercial speech, that doesn’t apply here: It is not the mark’s commercial nature as source identifier, but rather its ‘expressive character’ – disparagement of some person, group, or institution – that makes it non-registrable.
“For instance, ‘Stop the Islamization of America’ is expressive. In refusing to register the mark, the board explained that the mark’s admonition to ‘stop’ Islamization in America ‘sets a negative tone and signals that Islamization is undesirable and is something that must be brought to an end in America.'”
Late last year, the federal court concluded it is unconstitutional for the government to refuse to register trademarks because it disapproves of the messages or finds they may be disparaging to others.
Volokh added that the trademark clearly is not “government speech,” nor can the government exclude some because it doesn’t want to be associated.
