Justices from both sides of the Supreme Court’s ideological divide peppered the Obama administration with questions over its decision to deny a trademark to Simon Tam’s Asian-American rock band “The Slants.”
In Lee v. Tam, the high court is seeking to answer whether enforcement of the disparagement provision of the Lanham Act, which guides trademark registration, violates the First Amendment. The U.S. Patent and Trade Office denied the band a trademark because the office deemed the Slants’ name offensive, a decision the band has fought all the way to the Supreme Court.
On Wednesday, the Slants appeared to have allies on the court’s left and right wings. Justice Elena Kagan, one of the court’s left-leaning members, repeatedly questioned Deputy Solicitor General Malcolm Stewart about whether the Patent and Trademark Office’s decision amounted to viewpoint discrimination. Kagan noted that even if trademark registration is understood to be a government program, which affords differing restrictions on its speech, it is still subject to restraints regarding viewpoint discrimination.
But Chief Justice John Roberts did not appear willing to extend the benefit of the doubt that far. Roberts said he thought arguing that trademark is a government program was “circular” and didn’t advance the argument.
Malcolm, representing the government, argued that trademark “is not expressive in its own right” but functions to convey the source of the entity receiving the trademark. Malcolm’s argument clearly irked Justice Samuel Alito, who scrutinized Malcolm’s argument at length. Malcolm eventually conceded, “I don’t deny that trademarks are used for expressive purposes.”
Tam’s lawyer, John Connell, took the stand after Malcolm. But Connell may have overplayed his hand with an overly broad argument.
Connell based much of his argument on the idea that trademark contains both commercial and noncommercial speech, and he warned against governmental interference with noncommercial speech.
When Justice Stephen Breyer asked whether Connell thought the government could deny a trademark for the phrase “Joe Jones is a joke” or “Smith’s beer is poison,” Connell answered that the government should not. Connell’s answer prompted Breyer to exclaim “Oh my goodness.”
Justice Sonia Sotomayor followed Breyer’s line of questioning by asking whether “Trump is a thief” could be trademarked and Connell answered yes.
Connell’s answers piqued Justice Anthony Kennedy’s curiosity. Kennedy, whose vote could serve to determine the court’s ruling or the scope of its opinion, questioned whether Connell thought trademark should be governed just as speech is in a public park — where most anything goes. When Connell answered yes, his argument effectively questioned other trademark restrictions imposed by the Lanham Act beyond the disparagement clause, a point that Kagan quickly raised. Connell acknowledged Kagan was correct and appeared to walk back his argument, but some damage already appeared to have been done.
Connell also argued that the commercial and noncommercial speech components of a trademark were “inextricably intertwined,” which prompted Alito to ask incredulously how the high court would be able to separate them.
It’s not clear whether inconsistencies in either sides’ oral arguments could jeopardize their chances of victory. But if a consensus emerges in favor of the Slants’ cause, the author of the court’s opinion could have a crucial say in the scope of the ruling.
A victory by the Slants would benefit the Washington Redskins football team’s effort to fight its trademark dispute. But the scope of the ruling in the Slants case has the potential to dramatically alter the Redskins’ case, which involves a trademark cancellation, unlike the Slants.
Lee v. Tam has largely served as a proxy war over the Redskins nickname. The Redskins’ effort to let the Slants lead block at the high court has irked the band and others who simultaneously view the Slants’ name as part of an effort to promote Asian-American pride and construe the Redskins name as an ethnic slur. Some on the court’s left-leaning bloc appeared mindful of this consideration on Wednesday, particularly Justice Ruth Bader Ginsburg.
Ginsburg asked multiple questions about whether the Slants’ motivation should matter and wondered aloud whether the government has an interest in disassociating itself from racial and ethnic slurs. Sotomayor joined Ginsburg’s line of inquiry and said the Slants’ request for a trademark amounted to the band asking the government to endorse and protect its name.
It’s not clear if the band’s motivation in contrast to critics’ perception of the Redskins’ nickname as offensive will influence the scope of the high court’s opinion. But the politics underpinning the outcome of the Slants’ and Redskins’ efforts will loom large when the high court decides Lee v. Tam.
