Offensive Trademarks are Protected Speech, According to the Supreme Court

Ding-dong the disparagement clause is dead. In a trademark law ruling that will substantially expand the amount of acceptable trademarks, the Supreme Court came down against a rule in trademark law which bars disparaging marks.

The disparagement clause specifically barred marks which disparage, bring into contempt or disrepute any person, living or dead, institutions, beliefs, or national symbols. Some examples of marks that have previously been refused protection based on this clause include such gems as “Democrats Shouldn’t Breed”, “Republicans Shouldn’t Breed”, “Have you Heard that Satan is a Republican?”, and a bizarre trademark with the goal of mocking the Boston Red Sox–Sex Rod. Most famously in the last few years, the disparagement clause was used to cancel six trademarks associated with the Washington Redskins. This was due to “Redskins” being a pejorative term for Native Americans.

Another mark which fell prey to the disparagement clause was the mark that led to the case the Supreme Court just ruled on–The Slants. The Slants are an all Asian-American band out of San Francisco. Their name is obviously a pejorative term for Asian people. However, they specifically chose the name with the goal of making their name an ironic reclamation of the offensive term. Despite this, because the term itself disparages those of Asian descent, they were denied the protection of a trademark on their band name.

The Slants chose to challenge this in court, saying that a rule forbidding disparaging marks violates the First Amendment. As we covered previously, the U.S. Court of Appeals agreed with the band members. Now the Supreme Court has done the same, ending the disparagement clause once and for all.

Why is the Disparagement Clause Unconstitutional?

The government is generally not allowed to restrict speech based on viewpoint. If this were not the case, the government might be free to silence those who disagree with it with impunity.  However, the government can pass laws that restrict speech where they are content-neutral–not aimed at censoring the content of speech, but instead aimed at restricting the time, place, or manner which speech can be conveyed. Where a law makes a viewpoint based restriction, it will be unconstitutional most of the time.

In deciding whether a law makes a viewpoint based speech restriction the courts look to see if, within any topic, the government has target a certain type of speech for disfavor based on the what that speech is saying. For example, if the government forbade pro-lion taming speech but allowed anti-lion taming speech, that restriction would almost certainly be unconstitutional.

The Supreme Court found that the disparagement clause targeted a subject matter of the people, institutions, beliefs, and national symbols which the clause covers. Inside the subject matter, the clause allowed people to register marks referring to people or groups in a positive or neutral way, but not derogatory ones. Thus, the clause targeted a specific viewpoint and violated the First Amendment. This was exacerbated by the fact that the disparagement clause essentially allowed the government to determine what types of marks were offensive. The entire point of preventing viewpoint based speech restrictions is to prevent the government from choosing which speech to censor and which to allow.

The government defended the disparagement clause by describing trademarks as either government speech, government subsidy, or commercial speech–all types of speech which receive a lower level of protection than your own private speech. The Supreme Court rejected all of these classifications–officially declaring trademarks private speech.

Government speech, speech conveying a message from the government, does not need to be viewpoint neutral. This is because the government is allowed to voice its own position on an issue as opposed to sponsoring both sides of any matter. However, government speech has to actually come from the government. Trademarks don’t meet this requirement. The message from a trademark is communicating a private party’s brand, not the government’s approval or involvement in that brand. As the Supreme Court said, if trademarks represent the government speaking then the “Federal Government is babbling prodigiously and incoherently.”

Similarly to government speech, the government may subsidize one viewpoint over another. However, subsidies come in the form of money or tax breaks, not trademarks. Once again, the Supreme Court wasn’t having it.

Finally, commercial speech receives less protection than private speech. In general, speech is commercial when it is made by a company or individual with the goal of making a profit. However, the amount of protection is not so much less for commercial speech that it would make the disparagement clause constitutional. Restrictions on commercial speech still need to be as narrow as possible to achieve the government’s objective and the Supreme Court ruled that the disparagement clause just wasn’t narrow enough.

What Does The End of the Disparagement Clause Mean?

First and foremost, this ruling means that an enormous number of trademarks have become available. In the coming weeks, there will likely be an enormous boom in applications for the disparaging marks that were once out of reach.

Marks that were previously cancelled under the clause, such as the marks of the Washington Redskins, will likely be revived. In fact, the owner of the team–having filed briefs in support of a ruling like this with the Supreme Court–has been publically celebrating the ruling on social media.

This celebration is the perfect example of why many have found the ruling no cause to party–it allows racially insensitive or outright offensive marks such as the “Redskins” to receive protection. The band members of The Slants have recognized this, and have publically made it known that they are none too happy to be lumped in on the same side as the Redskins. However, the band members said that they pursued the case regardless because they felt that the broader free speech implications were more important.

So this is the central dilemma. Does this ruling mean that racial slurs can receive trademark protection? Yes. However, the flip side to this is that the alternative allows the government to choose what is offensive. As the Supreme Court noted in its ruling, the whole point of forbidding viewpoint based discrimination is to prevent the government from censoring speech. Where the majority gets to choose what speech is acceptable, the minority tends to get the short end of the stick. All the rest of our areas of intellectual property law don’t involve much in the way of morality restrictions, trademark is just catching up.