High Court Says Offensive TM Ban Is Unconstitutional

by Dwayne Torres June 20, 2017, 0:11
High Court Says Offensive TM Ban Is Unconstitutional

The suit was brought forth by Simon Tam, the founder of the Asian-American rock band The Slants.

A federal appeals court had sided with the band, ruling that the law violates the First Amendment.

"The government defends free speech around the world because it knows when free speech is threatened, religious minorities suffer", said Hannah Smith, senior counsel at Becket, a non-profit religious liberty law firm that says it has teamed with the government in the past to fight laws banning insulting or defaming religious speech.

In affirming a lower court ruling, the Supreme Court said the disparagement clause in the Lanham Act violates the First Amendment's protections of free speech.

The four more "conservative" justices, led by Justice Alito, explained why trademarks don't constitute a subsidy or other type of government program (within which the government can regulate speech), and that the "disparagement clause" doesn't even survive the more deferential scrutiny that courts give "commercial" speech.

"Holding that the registration of a trademark converts the mark into government speech would constitute a huge and unsafe extension of the government-speech doctrine, for other systems of government registration [such as copyright] could easily be characterized in the same way", Justice Samuel Alito wrote in the majority opinion.

Indian groups opposing the Redskins said the ruling does not change the fact that the name "is a dictionary-defined racial slur".

The NFL team's appeal has not yet been heard by a federal appeals court in Richmond, Va. Such suits must be filed by the federal government, not private citizens, that court held.

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Despite intense public pressure to change the Redskins name, team owner Dan Snyder has refused, saying in the past that it "represents honor, respect and pride" for Native Americans.

Band says decision means "marginalized communities" can determine for themselves what's best, even if it involves words thought racially insensitive.

In 2014, the trademarks office also canceled the Redskins trademark because the agency said it offends American Indians.

"I am THRILLED", Snyder told the AP.

Redskins attorney Lisa Blatt said in a statement that the team feels "vindicated" by the ruling. Justice Anthony Kennedy wrote a separate opinion and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

New high court Justice Neil Gorsuch didn't take part in the case. The same is true for the Redskins, but the team did not want to lose the legal protections that go along with a registered trademark. 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.

The request was denied on the ground that it is disparaging to "persons of Asian descent".


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