June 30, 2016

The Slants in the Supreme Court

By Caleb R. Trotter Attorney

As we noted earlier this year, The Slants–an Oregon rock band comprised of frontman, Simon Tam, and other Asian-American band members–was denied a trademark on the band name because the United States Patent and Trademark Office decided the name was disparaging toward people of Asian descent. In response, Mr. Tam sued and won before an en banc Court of Appeals for the Federal Circuit, claiming the “disparagement” clause of the Lanham Act violated the First Amendment.

The government has appealed that decision, and petitioned the Supreme Court for certiorari. Recognizing the importance of his case, Mr. Tam has not opposed the government’s appeal, and also asked the Supreme Court to take up the appeal to settle the question of whether denying trademarks based on the nebulous disparagement clause is an unconstitutional content-based speech restriction.

Adding an unusual twist, Pro Football, Inc. (the Washington Redskins), inserted themselves into the case and requested the Supreme Court to hear their very similar case at the same time as Tam’s case. The move by the Redskins is unusual because their case is currently pending in the Fourth Circuit awaiting oral argument. This procedural move is called a petition for a writ of certiorari before judgment.

Regardless of what the Court decides to do with the Redskins’ petition, it should take up Tam’s case and affirm the Federal Circuit. Mr. Tam’s brief provides a worthwhile read describing the many troubles that occur when the government engages in restricting speech that it disagrees with. PLF will keep an eye on the case and support Mr. Tam in seeking a constitutional outcome.

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