Michael McGough, Los Angeles Times, September 29, 2016
You may not have heard of the Slants, an Asian American rock band from Portland, Ore., whose name was chosen as an ironic comment on an ethnic slur.
First, it could affect a far better known (or more notorious) name in entertainment: the Washington Redskins. The NFL team also was denied trademark protection by the U.S. Patent and Trademark Office on the grounds that its name was offensive. The issue in both cases is whether the government may withhold a benefit, such as trademark protection, because it disapproves of the content of speech.
The editorial board of the Los Angeles Times already has weighed in on that issue. In an editorial in November we wrote: “The name ‘Redskins’ is offensive to Native Americans, and we wish that the owners of the National Football League franchise in Washington, D.C., would retire it. But the government’s decision to deprive the name of federal trademark protection went too far, and the team has the 1st Amendment on its side in challenging that decision.”
That’s essentially what a federal appeals court concluded in ruling in favor of the Slants, and the Supreme Court should affirm that ruling. By doing so, it also would dispose of the argument against trademark protection for the Redskins.
But a victory for the Slants could be significant in a second sense. It could give the court an opportunity to control the damage from one of its worst 1st Amendment rulings in recent history.
That was last year’s 5-4 decision in which Justice Clarence Thomas joined the court’s four liberals in upholding a decision by the state of Texas to refuse an application by the Sons of the Confederate Veterans for one of hundreds of specialty license plates the state issued to various associations, colleges, fraternities and businesses. The plate would have featured the organization’s logo which incorporates the Confederate battle flag.
In asking the Supreme Court to reinstate its decision to deny trademark protection to the Slants, the Patent and Trademark Office cites the license-plate decision: “Just as a state is not required to place racist, misogynistic or bigoted terms on license plates issued by the state,” it says, “the PTO is not required to use its resources to issue certificates of registration for marks containing disparaging terms, publish them in the PTO’s Official Gazette and record them on the Principal Register.”
Even some justices who were willing to see specialty license plates as government speech – are you listening, Justice Thomas? — should balk at allowing the government to use its trademark authority to influence what a sports team or rock group decides to call itself.