In Matal v. Tam the Patent and Trademark Office (PTO) denied the application under a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contempt or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a).
The case involved an Asian band of musicians who want to register their band name. The patent office believed that the band name The Slants would offend someone and that it disparages Asians. That was an interesting take since the band themselves are Asian. Apparently Asians offending fellow Asians should not be allowed as a form of speech.
Thankfully the court soundly rejected that notion. Offensive speech and even hateful speech is the bedrock of our freedom of speech in this country.
They wrote: “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.’”
They further stated: “The disparagement clause violates the First Amendment’s Free Speech Clause. Contrary to the Government’s contention, trademarks are private, not government speech. Because the “Free Speech Clause . . . does not regulate government speech,”
In other words, the government does get the option of regulating private speech by affirming a trademark. “This Court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.“
Private speech does not become government speech through a seal of approval. The court also rightly stated that the government does not. And trademarks are private speech. The Trademark office believed that by approving the trademark it then became government speech which is not protected under the 1st Amendment. “Because the “Free Speech Clause . . . does not regulate government speech,”
This is a great victory for freedom of speech. The Washington Redskins should also be celebrating this win as their trademark had been rejected or terminated by the Trademark office. But it also points to larger problem and that is the problem with the Millennial generation, and campus speech movements of the left. Instead of limiting speech, expand speech.
The snow flake generation does not want to be exposed to thoughts, or ideas that they find offensive. There is no provision in the 1st Amendment that says you have a right NOT to be offended. As a friend recently wrote: “You have a right to be offended and I am here to expedite the process.”
A copy of the court decision Matal v Tam can be found here.