- The Washington Times - Monday, June 19, 2017

The government cannot censor trademarks because some people find them offensive, the Supreme Court ruled Monday in a major decision that could clear the way for the Washington Redskins football team to maintain its trademarks.

In an 8-0 ruling, the justices said the U.S. Patent and Trademark Office overstepped its powers and violated the First Amendment rights of an Asian-American rock band when it denied them a trademark on their name, The Slants.

The agency said the name was an offensive anti-Asian slur that violated a clause in federal law prohibiting disparaging trademarks. But the court said it’s the law, not the band, that must change.

“Speech may not be banned on the ground that it expresses ideas that offend,” Justice Samuel A. Alito Jr. said in his opinion for the court.

Analysts said the ruling could clear the way for other controversial trademarks, including the Redskins.

The trademark office, at the urging of some American Indian groups, said the team’s trademarked name was an offensive and outdated slur. Their legal battle is pending in the 4th U.S. Circuit Court of Appeals. The case was put on hold to await the Supreme Court’s decision in the band’s case.

“I am thrilled! Hail to the Redskins,” team owner Dan Snyder said after the decision.

Some American Indian groups, however, saw a difference between The Slants and the Redskins. They said no matter what the courts rule, the National Football League should step in and reject the team name.

“Washington’s football team promotes, markets and profits from the use of a word that is not merely offensive — it is a dictionary-defined racial slur designed from the beginning to promote hatred and bigotry against Native Americans,” said a joint statement by Jackie Pata, executive director at the National Congress of American Indians, and Ray Halbritter, a representative for the Oneida Nation. “If the NFL wants to live up to its statements about placing importance on equality, then it shouldn’t hide behind these rulings, but should act to end this hateful and degrading slur.”

But an overwhelming majority of American Indians do not consider “Redskins” a derogatory term. A poll conducted last year by The Washington Post found that 9 in 10 American Indians say they were not offended by the Washington Redskins name.

In court, American Indian groups argued that the Patent and Trademark Office had a duty to encourage racial tolerance and protect minorities from demeaning messages in commercial advertising.

But Justice Alito said the line between commercial and noncommercial speech is tough to spot, and the First Amendment has long protected Americans’ rights to be offensive.

“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,’” wrote Justice Alito.

In another First Amendment ruling Monday, the court overturned a state law that banned registered sex offenders from accessing social media. The justices said the internet has become the locus for job searches and contacting public officials, and banning anyone from accessing social media is an unconstitutional infringement.

That ruling, too, was 8-0.

In the trademark case, the government argued that since a federal agency ruled on trademarks, they amounted to a form of government speech. Attorneys said that meant the government had the right to prohibit trademarks deemed offensive.

Justice Alito, however, said trademarks are private speech.

“Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way,” Justice Alito wrote.

Analysts said the ruling lays down a major marker for free speech.

“All the justices agree that the government can’t ban speech because it may offend certain people,” said Josh Blackman, a professor at South Texas College of Law Houston. “In today’s day and age, that’s a fairly significant opinion that there’s agreement on this.”

Simon Tam, lead singer of The Slants, suggested there was a way to uphold his trademark while not deciding on broader issues that affect the football team’s name.

But the court said major First Amendment issues were at stake and chose to rule broadly, striking down the “disparagement clause” in trademark law.

Mr. Blackman said it’s likely the case clears the path for the Redskins but pointed out a difference between the cases. Mr. Tam said he was trying to reclaim the slur “slants” as a symbol of racial justice on behalf of Asian-Americans.

The Redskins haven’t made that argument about their team name.

“So there might be some grounds of distinction there,” said Mr. Blackman.

Trademark law is full of confusing cases. The television show “Queer Eye for the Straight Guy” was registered by the trademark office, but “Clearly Queer” was rejected. “Permachink” was accepted, but “chink proud” was rejected.

Luke DeMarte, a partner at Michael Best, said the ruling Monday clears up much of that confusion.

“This decision will free the USPTO from its impossible burden and bring some consistency to the examination process,” said Mr. DeMarte.

Christine Farley, a law professor at American University, said the part of the law the Supreme Court struck down Monday also applied to “immoral” or “scandalous” trademarks. She argued that the ruling leaves ambiguity on those counts, and she said Congress could step in and legislate to stop their registration.

“More likely than not, the trademark office will probably not refuse any registration as being scandalous or immoral, and we will probably wait for Congress to rewrite this provision,” she said.

The ruling will also affect disparagement clauses in state trademark laws across the country, said J. Michael Keyes, an intellectual property lawyer and partner at Dorsey & Whitney, who pointed to a state law in Washington that mirrors the federal law.

“That provision in our state statute is unconstitutional in light of the court’s decision,” he said.

Nora Princiotti contributed to this report.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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