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What’s Wrong with the Redskins
The Supreme Court will likely consider the question of whether the government is permitted, under the First Amendment, to deny registration of disparaging trademarks, as it did with the Washington Redskins, in 2014.
In this country we don’t ban “Mein Kampf,” Ku Klux Klan screeds, or objectionable terms for racial groups. It is clear that the government cannot disallow offensive or hateful speech. But the federal trademark law, known as the Lanham Act, has since 1946 barred the registration of marks that may disparage “persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” In 2014, after nearly half a century of registering and renewing “The Redskins,” the government cancelled the football team’s trademark registrations, on the grounds that the name may be disparaging to Native Americans. The cancellation does not ban the team’s use of the name. Instead, it does away with the legal presumption that the team has the exclusive right to use the name in commerce, thus providing a substantial incentive for the Redskins—and other groups—to avoid using a name that may be considered offensive.
The Supreme Court will likely consider the question of whether the government is permitted, under the First Amendment, to deny registration of disparaging trademarks, in the case of Simon Tam, for whom the Redskins are strange bedfellows. When Tam applied to register the name of his all-Asian dance-rock band, the Slants, he meant to reclaim an epithet for Asians as a badge of pride, but the government refused the registration on the grounds that the name was likely disparaging to people of Asian descent. Last year, the U.S. Court of Appeals for the Federal Circuit heard Tam’s case and issued a broad holding that the disparaging trademarks provision is unconstitutional. The government has now appealed to the Supreme Court, and its petition likely will be granted, because the lower court invalidated a congressional law on an important issue. The Redskins have asked the Court to hear their case along with Tam’s, even though their case hasn’t yet made its way through the Fourth Circuit.
Tam was inspired to create an all-Asian band by Quentin Tarantino’s film “Kill Bill.” Watching the scene in which gangsters known as the Crazy 88 strut with swords into a Tokyo restaurant, he said, “I realized it was the first time I’d seen an American-produced film that depicted Asians as cool, confident, and sexy.” He couldn’t recall seeing Asians on the cover of Rolling Stone, or hearing Asian rockers on the radio. Contemplating possible band names, Tam asked a white friend what he thought all Asians had in common, and the friend said, “Slanted eyes.” Tam was suddenly taken with the idea of a slant—that is, a viewpoint. It happened that “slant” was also a musical term for a type of guitar chord. “Guitarists tend to assume we’re just talking about our music. Asians get it and think it’s funny and provocative. They find it empowering. It’s just one of those cool hidden things.”
The Slants, based in Portland, Oregon, have toured across the country playing eighties-style dance music to mostly Asian-American audiences. When the Patent and Trademark Office first denied their trademark registration, Tam thought it was “a simple misunderstanding. Obviously we don’t disparage Asians. We play at Asian festivals.” Tam filed a second application, but this time omitted the Asian emphasis of the band and its name. The P.T.O. still found that “The Slants” referred to Asians, pointing to Tam’s ethnicity, the band’s use of Asian imagery, and his statement on the band’s Web site that he selected the name to “own” the Asian stereotype. It was when Tam realized that the band’s Asian identity was actually counting against the application that he wanted to fight. “If I was in an all-white band, ‘The Slants’ would not have been an issue,” he told me.
The government is understandably reluctant to facilitate commercial gain from the use of offensive terms. But, as the Federal Circuit reasoned, enforcement of the disparaging-trademarks provision means that the government approves certain speakers’ messages and disapproves others, engaging in impermissible viewpoint discrimination. Tam wanted the government to recognize what the band’s audiences understood—that the name “The Slants” was about Asian pride, not racism against Asians, and in that way was notably different from “The Redskins.” (He has spoken out against the Redskins’ name.) But it’s hard to be confident that the government will be able to discern the difference between denigrating people and reclaiming a term that denigrates people, particularly if the reappropriation hasn’t yet become widespread enough to diminish the term’s power to hurt a vulnerable group. And asking the government to inquire into whether the speaker intends to disparage or praise would mean involving it in precisely the kind of viewpoint discrimination we don’t want the government engaged in. In effect, the government would have to adopt one viewpoint over the other even to determine whether a trademark is offensive.
more..http://www.newyorker.com/news/news-desk/whats-wrong-with-the-redskins?intcid=mod-latest
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