Free speech can be hate speech in bizarre ‘The Slants’ case
In a unanimous ruling in the US Supreme Court published this week, the justices decided that an Asian-American rock group could apply to trade mark its name despite the fact that it’s highly derogatory of Asians.
Simon Tam, lead singer of ‘The Slants’, chose the moniker in order to, as the court elegantly put it: “reclaim the term and drain its denigrating force as a derogatory term for Asian persons.”
Tam then sought to register the mark ‘The Slants’. But the US Patent and Trademark Office (PTO) denied the application under a federal law which prohibits registration of trade marks that may “disparage… or bring… into contempt or disrepute” any “persons, living or dead.”
Tam contested this position and took his case all the way to the US Supreme Court, arguing that this element of the federal law was unconstitutional under the First Amendment (free speech). The US’s highest court agreed.
Justice Alito concluded in the judgment:
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.’
In the case, it was observed that the group from Portland, Oregon (which has been compared to 80s favourites ‘Depeche Mode’ and ‘New Order’) “draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes” and has albums with names such as ‘The Yellow Album’ and ‘Slanted Eyes, Slanted Hearts’.
The case also involved a hilarious amicus brief in support of the rock group that cited a wide range of offensive and insulting trade marks which already exist including ‘Poor White Trash Productions’ and ‘Shameless Hussy’.
The case does not necessarily mean that the name ‘The Slants’ will become registered — that will depend on all the usual rules about trade marks. These are often highly controversial when organisations or individuals seek to register words or phrases which are part and parcel of common parlance.
Nor is it only words: recently, rock legend Gene Simmons (pictured bottom right), co-founder of Kiss, put in an application to trade mark the well-known ‘I Love You’ sign which, he argued, he first used way back in 1974. In the application, the sign is described as: “a hand gesture with the index and small fingers extended upward and the thumb extended perpendicular”.
He has only this week withdrawn the application. Kiss goodbye to that trade mark, Gene.
For all the latest commercial awareness info, and advance notification of Legal Cheek’s careers events, sign up to the Legal Cheek Hub here.
