Justices say law on offensive trademarks is unconstitutional

Ausiliatrice Cristiano
Giugno 20, 2017

The Supreme Court ruled Monday that a law that prohibits the government from registering trademarks that "disparage" others violates the First Amendment, a decision that could impact the Washington Redskins' efforts to hang on to its controversial name.

The U.S. Supreme Court said the federal government can't constitutionally withhold legal protections for trademarks seen as disparaging, throwing out a 70-year-old provision as a free-speech violation.

The justices ruled Monday that a federal appeals court was wrong to consider the merits of Percy Hutton's claim that his trial judge gave jurors faulty instructions during sentencing. And, as we have explained, that idea strikes at the heart of the First Amendment.

The Supreme Court actually declined to hear the appeal of the Patent & Trademark Office decision to cancel federal protection of the Redskins name, but that was because a lower court had yet to rule, so it was more about the timing of the filing, which the court signaled was premature.

According to an opinion written by Justice Samuel Alito, "The disparagement clause violates the First Amendment's Free Speech Clause". But founder Simon Tam said the point of the band's name is just the opposite: an attempt to reclaim a slur and use it "as a badge of pride".

The team's appeal, also on free speech grounds, was put on hold in the 4th Circuit Court of Appeals in Richmond, Virginia, pending the outcome of The Slants' case. Ultimately, however, the sentiment is similar that the government must be careful about interfering with free speech.

Snyder has repeatedly insisted he will not change the team's name despite continuing objections by Native Americans. Snyder issued a quick statement after Monday's decision: "I am THRILLED".

The team's trademark registration was canceled in 2014 after decades of use.

The patent office's attorney had argued that the word "slant" was "a negative term regarding the shape of the eyes of certain persons of Asian descent" that has a "long history of being used to deride and mock a physical feature of those individuals".

Lisa Simpson, an intellectual property expert, characterized the Supreme Court's decision as a slippery slope.

Alito was backed in the majority opinion by Chief Justice John Roberts Jr., Justice Clarence Thomas and Justice Stephen Breyer.

"A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all", Kennedy said in an opinion joined by Justices Ruth Bader Ginsburg, Sonya Sotomayor and Elena Kagan. Those bystanders, in this case, would be the marginalized groups who have been trying to get their own trademarks registered. The band's lawyers argued that the government can not use trademark law to impose burdens on free speech to protect listeners from offense.

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