JUNE 29, 2017 — Asked to decide whether a band name using pejorative slang could be deprived of trademark protections, the Supreme Court correctly ruled in defense of the band — and of the First Amendment.
Let’s hope the decision will herald the high-water mark of America’s speech-policing movement.
Americans have been busybodies about manners and mores for hundreds of years. That’s a tradition set to continue for a long time. But now, the concerted effort of a radical vanguard to inscribe its desired speech restrictions into law — especially through the courts — should come to an end.
The court’s ruling affirmed two basic rules. First, so-called hate speech is safe from prohibition. Second, and even more important, what we could think of as “soft” hate speech is safe from “soft” punishment.
So, a group cannot be denied traditional legal protections by the government for using language that is — or could be — offensive to groups historically granted constitutional protection against invidious discrimination. In this case, the group is a band, whose members are Asian-American, that calls itself The Slants.
Not only does this ruling square with the plain meaning of the First Amendment. It goes further, clarifying that speech jurisprudence does not blur into a vast gray area where judges must determine if a hypothetical party might reasonably claim standing based on the injury of offense. Even if some person or large group of people could reasonably take grave offense at trademarked language, the law must not retaliate by trimming or withholding trademark rights.
The implications that flow from the ruling are big. To begin with, the court cracked down on the notion that offensive speech is especially undeserving of protection when it is used to make a profit. A growing number of Americans are themselves offended when, as in the case of the Washington Redskins, a cash cow of a brand is seen as racial disparagement. (The Trademark Office controversially canceled that brand trademark in 2014.)
As Justice Samuel Alito put it, however, disparaging speech is not more open to legal attack because it is being successfully marketed.
“The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear,” Alito wrote. “If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”
Next, the court’s ruling dismissed another branch of argumentation used to suppress actually or hypothetically insulting language. In an effort to turn the logic of the speech police against them, the band’s founder insisted his use of a pejorative moniker was intended to reclaim the term as a mark of ironic pride — the same sort of move, for instance, as the one that has seen “queer” completely lose its slur status in recent years. While the Trademark Office argued that this relativistic defense did not eliminate or compensate for the disparagement, the court refused to open the can of worms that would result.
“It is not an anti-discrimination clause; it is a happy-talk clause,” Alito wrote. “In this way, it goes much further than is necessary to serve the interest asserted.”
Still, the court noted, the Constitution does accommodate the government’s general if narrow interest in moderating or muting the public expression of offensive ideas. If that leaves some room for future litigation, it also slams the door on much of today’s overwrought speech policing.