Thus the name, “The Slants,” which front man Simon Shiao Tam came up with “to make a statement about racial and cultural issues in this country,” to “reclaim” and “take ownership” of Asian stereotypes. Its lyrics are in part inspired from “childhood slurs and mocking nursery rhymes,” its albums including titles like “The Yellow Album and “Slanted Eyes, Slanted Hearts.”
And the Slants are also a major federal court case, from which the above is quoted, likely headed to the U.S Supreme Court.
That’s because when the group sought to trademark the name in 2011, the Patent and Trademark Office rejected the registration, finding it disparaging to “persons of Asian descent,” and thus a violation of something called “the disparagement provision” of the trademark law, which bans, among other things, a trademark that “may disparage” people or beliefs or “bring them into contempt or disrepute.” The examiner of the trademark application, in arriving at the decision not to allow registration of the mark, consulted the dictionary, news articles in which Asians are quoted describing the term “slants” as disparaging and Asian American organizations calling the band’s name “racially offensive.” The band, in turn, took issue with the constitutionality of a denying registration on the basis of speech, offensive or otherwise.
“I didn’t start a band to go to court. I started a band to tour,” Simon Tam told the Portland Oregonian last year. “Do we fix our bus? Or do we pay this court fee? But at the end of the day, we’ve got to go by our principles.”
The band went by its principles, appealed the ruling and ultimately won a decision by the full U.S. Court of Appeals for the Federal Circuit that the section of the law violated freedom of speech under the First Amendment. “The government cannot refuse to register disparaging marks because it disapproves of the expressive messages” they convey or “because it concludes that such marks will be disparaging to others.”
That, said Judge Kimberly A. Moore, last December, “amounts to viewpoint discrimination” and that is unconstitutional. The government appealed to the Supreme Court and is awaiting a decision on whether the justices will take the case.
The Washington Redskins have had no such luck making the same argument in its fight with the Patent and Trademark Office, which cancelled the Redskins trademark last year citing that same “disparagement provision.”
So now the team, which is in the middle of an appeal to the U.S. Court of Appeals for the 4th Circuit, is seeking to piggyback on the Slants’ case at the Supreme Court. In a petition filed Monday, it said that if the court agrees to review the Slants’ case, it should also take the team’s case as a “companion case.” It is, said the Redskins’ lawyers, “a necessary and ideal companion” to the Slants’ case, originally known as “In re Simon Shiao Tam.”
There’s nothing “ideal” about it, as far as Simon Tam is concerned. He and his band have been trying to distance themselves from the Redskins case for some time and Tuesday, in response to the Redskins’ petition, reiterated all the reasons why the band sees no parallel between the two.
“There has never been a formal challenge or objection by members of the Asian American community despite nearly 1,000 appearances by the band – in fact, nearly every major Asian American media source has supported our work (including Asian Week, Angry Asian Man, Disgrasian, 8Asians, the Asian Reporter, the Asian American Press, and more,” the band said in a post on its website. “In national surveys, the overwhelming majority of Asian Americans support our use of the name. This, of course, is a completely different set of circumstances than what Native Americans and THE REDSKINS have been facing.
“‘Redskin’ has a long history of oppression, the football team treats the people as mascots. On the other hand, Asian-American activists have been using ‘SLANT’ to present a bold portrayal of our culture for decades now. THE REDSKINS reinforce stereotypes of savage Native Americans. THE SLANTS breaks stereotypes about Asians Americans, especially in the entertainment industry.”
Of course, nobody expects Redskins’ lawyers, or any lawyers, to shy away from helpful precedents because someone is offended. And the band’s argument about whether the term was disparaging likely has little or no bearing on whether or not the Supreme Court reviews either of the cases.
The issue is whether the government, under the First Amendment, should be deciding what names are or are not offensive for purposes of trademark applications.
“We recognize,” the appeals court said, that invalidating the disparagement provision “may lead to the wider registration of marks that offend vulnerable communities….But much the same can be (and has been) said of many decisions upholding First Amendment protection of speech that is hurtful or worse. Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others.”
In its high court appeal, the government argues that the disparagement provision and the decision to reject the band’s registration is “not an affirmative restriction on speech.”
It is simply offering “federal benefits on terms that encourage private activity consonant with legislative policy.” The “sweeping holding” of the Federal Circuit, the government argued, would allow trademark registration for “even the most vile racial epithet,” said the government’s petition to the Supreme Court.