Thursday, June 29, 2017

Supreme Court strikes down "happy talk' trademark statute under the First Amendment

The Supreme Court continues its forward march into First Amendment absolutism. Over the last decade or so, the Court has held that the First Amendment protects (1) unlimited corporate money into elections; (2) offensive anti-gay protests at military funerals; (3) videos depicting cruelty to animals; and (4) stolen military valor. This time around, the Court holds that the First Amendment prohibits the Patent and Trademark Office from denying patents that may disparage or bring into contempt or disrepute any persons, living or dead.

The case is Matal v. Tam, decided on June 19. The plaintiff is lead singer for a rock group, The Slants. Thar word is regarded as an insult to Asians, but the band uses that name to "reclaim" the term and dilute its denigrating force as a derogatory term. Writing for the Court, Justice Alito notes that government-sponsored speech is not subject to constitutional restrictions, citing as an example the government's pro-war posters and other materials during World War II which did not require equal time from war opponents. But the patents are not government speech, the Court says, and any contrary argument would bring too much speech into that category. "If the registration of trademarks constituted government speech, other systems of government registration could easily be characterized in the same way." Nor is this a commercial speech case, where the government has more leeway in regulating content

Getting to the heart of the matter, the Court summarizes the pro-government position in this case as follows: "The Government has an interest in preventing speech expressing ideas that offend." That will not cut it, Justice Alito says. "As we have explained, that idea strikes at the heart of the First Amendment.  Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.' United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting). That language really sums it up. The government cannot take sides when it comes to offensive speech. You can say whatever you want.

The parties that don't like trademark protection for bands like The Slants also argue that denying the patent will protect the orderly flow of commerce, which is disrupted by trademarks that disparage on the basis of race, ethnicity, religion, etc. The Court rejects that argument also, further offering language that is bound to turn up in future speech cases:

A simple answer to this argument is that the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause 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. In this way, it goes much further than is necessary to serve the interest asserted.

The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution. Is it conceivable that commerce would be disrupted by a trademark saying: “James Buchanan was a disastrous president” or “Slavery is an evil institution”?

There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. 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, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered.

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