Robert S. Chang is professor of law and executive director of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law.
This week, the Supreme Court struck down a law that had allowed the government to deny or cancel a federally registered trademark that is racially disparaging. In doing so, the court has now opened the door to discriminatory commercial speech.
The case, Matal v. Tam, involved an Asian American rock band that attempted and failed to register a trademark that was derogatory toward people of Asian descent. As with a similar case involving a certain Washington pro-football team, critics of the law characterized the trademark denial as an affront to free speech and argued that the government was using the trademark process to wrongly censor constitutionally protected speech.
This is simply not correct. Despite the Trademark Office’s actions, the band and the football team have remained free to use their names. These names simply won’t be registered trademarks.
Conservatives have focused on the notion that all that is at stake here is offensive speech, as though all that is at stake here are hurt feelings. This ignores the harm to individuals and to society that can occur if the government furthers discriminatory commercial speech. The government has already recognized the importance of regulating speech in the housing context by forbidding advertisements that communicate a discriminatory preference.
Justice Samuel A. Alito Jr., speaking for himself and Justices Clarence Thomas and Stephen G. Breyer and Chief Justice John G, Roberts Jr., rejected limits on racially disparaging trademarks and instead declared that “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’ ”
This proud pronouncement misunderstands the constitutional limits recognized by the 1964 Civil Rights Act and underestimates the mischief and harm wrought by the court’s decision this week.
Half a century ago, private businesses had the freedom to turn away black customers. Indeed, they were free to post signs designating certain facilities for “colored” people and others for “whites” — essentially to express specific political views about the proper place of the races. Today, however, we not only allow our government to regulate such expression — we expect it.
Title II of the Civil Rights Act prohibits discrimination based on race, color, religion or national origin in certain places of public accommodation so that all persons would have the full enjoyment of the goods and services provided by those facilities. Those signs that said “Whites Only” or “No Dogs, Negros or Mexicans” had to come down from restaurants, movie theaters and hotels. Our system of government and our constitutional jurisprudence already recognize that there are limits to free expression for those who choose to participate in commerce.
This week’s decision from the Supreme Court doesn’t overturn the Civil Rights Act, of course, but it’s not far-fetched to think that the precedent that was set could be used to recreate a segregated marketplace through signs that can be federally registered as trademarks.
Federal Circuit Judge Jimmie V. Reyna recognized this possibility in his dissent in Matal v. Tam before the Supreme Court weighed in on it, proposing a hypothetical restaurant named “Spics Not Welcome.” If this restaurant did not deny service to Latinos, then presumably it would not be in violation of Title II of the 1964 Civil Rights Act. Nevertheless, the sign, through its expression, would likely lead Latinos to avoid the restaurant, accomplishing through speech what could not be done directly by turning Latinos away at the door.
Unfortunately, Reyna’s hypothetical is an actuality of sorts. In Florida and other states, gun store owners have placed signs on their establishments declaring themselves to be a “Muslim Free Zone.” As the owner of one of the stores, Florida Gun Supply, said: “My goal is to make sure they don’t feel welcome here so I don’t have the need to discriminate in the first place.”
Following Matal v. Tam, nothing will prevent the owner from obtaining federal registration of “Muslim Free Zone” as a trademark, accomplishing through speech what he might not be able to do through direct denial of service. For businesses not covered by Title II of the 1964 Civil Rights Act, nothing will prevent the creation and federal registration of trademarks such as “No Gays Allowed” or, for that matter, “Whites Only.”
The federal government, though, should not be required to register these trademarks. The government should not be required to participate in discrimination.
This is where we are following the Supreme Court decision. This is the mischief that will come.