Supreme Court Sides with the Slants

Published in The Rafu Shimpo on

Trademark dispute was over band’s use of a derogatory name.

WASHINGTON — The U.S. Supreme Court ruled Monday that The Slants, an Asian American rock band, has the right to use its name even if some consider it a slur.

Simon Tam, the group’s frontman, chose this moniker in order to “reclaim” the term and drain its denigrating force as a derogatory term for Asians. He sought federal registration of “The Slants,” but the Patent and Trademark Office denied the application under the Landham Act provision prohibiting the registration of trademarks that may “disparage … or bring into contemp[t]or disrepute” any “persons, living or dead.”

Tam contested the denial of registration through the administrative appeals process, to no avail. He then took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s free speech clause.

Supreme Court Justice Samuel Alito wrote, “There is … a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”

Based in Portland, Ore., and billed as “the world’s first and only all-Asian American dance rock band,” The Slants consist of Tam on bass, Ken Shima on vocals, Joe X. Jiang on guitar, and Yuya Matsuda on drums. Other Asian American musicians have been members of the band since it was formed in 2006. They describe their genre as “Chinatown dance rock: ’80s-inspired synth pop meets indie.”

The group has drawn inspiration for its lyrics from childhood slurs and mocking nursery rhymes and has given its albums names such as “The Yellow Album” and “Slanted Eyes, Slanted Hearts.”

“We are deeply concerned about the government placing limits on people of color and other marginalized groups from expressing their viewpoints,” Mat dos Santos, legal director of ACLU of Oregon, said while the case was pending. “This is a case where a racially charged term is being reappropriated as a way to fight back against historical oppression. To limit the trademark benefits of such artistic and political expression would marginalize people struggling for tolerance and racial justice.”

Mari Watanabe of Oregon Nikkei Legacy Center and the Oregon Commission of Asian Pacific Islander Affairs said the band’s name “does not disparage Asian American identity, it celebrates it.”

Tam issued a statement on the ruling: “After an excruciating legal battle that has spanned nearly eight years, we’re beyond humbled and thrilled to have won this case at the Supreme Court. This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves.

“During the fight, we found the Trademark Office justifying the denial of rights to people based on their race, religion, sexual orientation, and political views, simply because they disagreed with the message of these groups. To that end, they knowingly used false and misleading information, supported by questionable sources such as, while placing undue burdens on vulnerable communities and small business owners by forcing them into a lengthy, expensive, and biased appeals process.

“The Supreme Court has vindicated First Amendment rights not only for … The Slants, but all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination.

“For too long, people of color and the LGBTQ community have been prime targets under Section 2(a) of the Lanham Act, simply because we believe in the deliberate disarmament of toxic language and symbols. We’ve had to endure the Trademark Office working in isolation of our groups to navigate the troubled waters of identity politics and shifting language and culture, without any sense of cultural competency, consistency in enforcement of rules, and only giving the benefit of doubt to the most privileged members of society.

“Now, Americans can decide who should prevail in the marketplace of ideas rather than a lone examining attorney. Oppressed groups will no longer have their identities shaped by the sensibilities of dominant ones.

“When I started this band, it was about creating a bold portrayal of Asian American culture. The establishment of an Asian American band was a political act in of itself, even though we never considered ourselves as a political group. However, as we continued writing music about our experiences, we realized that activism would be integrated into our art as well.

“I’m proud our band members have helped raise over $1 million for issues affecting Asian Americans, that we’ve worked with dozens of social justice organizations, and that we could humanize important issues around identity and speech in new and nuanced ways. So we became part art and part activism.

“We dedicated our newest release, ‘The Band Who Must Be Named,’ as an open letter to the United States Patent and Trademark Office to articulate these values. Music is the best way we know how to drive social change: it overcomes social barriers in a way that mob-mentality and fear-based political rhetoric never can.

“Language and culture are powerful forms of expression and we are elated to know that the Supreme Court of the United States agree. Irony, wit, satire, parody…these are essential for democracy to thrive, these are weapons that neuter malice.

“We are filled with appreciation for the numerous groups who have helped us along the way. Organizations from all sides of the political [spectrum]made for unlikely allies in order to address the false dichotomy between free speech and civil liberties. We know that to truly protect the most marginalized members of society, we absolutely must protect and expand the First Amendment.

“There will always be villainous characters in a free society but we cannot be so blinded in our desire to punish them that we are willing to bear the cost … on the backs of the marginalized.”

Opposing View

In November 2016, Asian Americans Advancing Justice-AAJC and 11 Asian American organizations filed an amicus brief to warn the Supreme Court about the dangers of opening the federal trademark program to racial slurs and other disparaging words.

The brief represented the first time many Asian American groups had directly spoken up in the case, with the intent to ensure that the interests of civil rights and free speech are not improperly pitted against each other. Attorneys from Emery Celli Brinckerhoff & Abady, LLP provided pro bono assistance on the brief.

The case raised two important issues to the civil rights community — combating slurs and hateful marks that disparage minority groups and supporting the right of minority groups to reclaim and reappropriate historically derogatory terms. Advancing Justice led a coalition urging the Supreme Court to recognize and protect both interests.

“Words can inspire positive change or incite hate,” said Mee Moua, president and executive director of Advancing Justice. “Minority groups have been successful in reappropriating terms in the past, but reclamation cannot come at the cost of dismantling the statutory protections to keep any one individual or commercial entity from owning and profiting off of a disparaging word or term.”

While recognizing that Tam is trying to reclaim the slur, Advancing Justice argued that not all trademarks involve progressive efforts, and that Native American groups were fighting to cancel the federal trademark for the Washington Redskins football team as a trademark degrading to Native Americans.

“The brief explains why our communities rely on tools in the law to combat the effects of degrading racial, ethnic, and religious slurs,” Advancing Justice said in a statement. “Recent events highlight that the harms associated with these slurs are very real, with racist rhetoric inciting hate crimes and other violence, including harassment in schools. But the brief also supports communities’ efforts to reclaim hateful language by urging the court to craft a balanced approach that considers Tam’s requested use for the trademark and the expressive context of his band’s name.

“The brief recognizes that progressive artistic efforts to reclaim disparaging terms can be distinguished from non-expressive efforts to profit from trademarks that denigrate minorities and perpetuate harmful racial stereotypes, such as in the Washington Redskins’ case.”

The amicus brief was joined by Asian Americans Advancing Justice–Atlanta; Asian Americans Advancing Justice–Chicago; Asian Law Alliance; Asian Pacific American Labor Alliance, AFL-CIO; Asian Services in Action Inc.; The Institute for Asian Pacific American Leadership and Advancement; Laotian American National Alliance; National Council of Asian Pacific Americans; National Federation of Filipino American Associations; OCA–Asian Pacific American Advocates; and Southeast Asian Resource Action Center.

On the band’s website, Tam, responding to suggestions that The Slants had formed an alliance with the Redskins, pointed out differences between the two cases:

“1. Unlike Redskins, The Slants is not an inherent racial slur. ‘Slant’ means a number of different things and the racial connotations are so obscure, nearly every major dictionary publisher removed the racial slur from its list of possible definitions. ‘Redskins’ always has been used as a racial slur and has a long history of demeaning Native Americans. ‘Slant’ has not. It has been and is a commonly used ‘neutral’ term (according to dictionary experts, it was obscure even during the height of its racial use in 1920-1940). Furthermore, two national surveys showed that Asian Americans do not find our name disparaging …

“2. Redskins has a substantial composite of Native Americans demonstrating serious concerns over the name. The Slants has not garnered wide protest from Asian Americans; in fact, quite the opposite. Our band has been supported by lifelong activists, organizations, academics, and other experts who understand the sentiment of our community. We’ve partnered with over 200 social justice and advocacy organizations across North America to focus on anti-racism work.

“3. The owners of ‘Redskins’ are not members of the ‘referenced group,’ unlike The Slants. It’s important to remember that of the 800+ trademark applications for variations of the term ‘slant,’ only one was denied for being a ‘racial slur.’ In other words, the Trademark Office never considered it to be a slur against Asians until an Asian applied. The Trademark Office clearly expressed that the only reason why they associated our trademark application with a racial slur was because of my race. They wrote, ‘it is uncontested that applicant is a founding member of a band…composed of members of Asian descent…thus, the association.’ In other words, if I were white, like every other applicant in the history of the country, it would have not been questioned to begin with …

“The only commonality between the two cases is the trademark law that is at stake: Section 2(a) of the Lanham Act, the same law which has been inconsistently applied for decades and has been disproportionately affecting minorities for about 70 years.”