Facing for the first time the constitutionality of a 71-year-old law governing the right to use a specific label for a product, service or activity – a trademark, a unanimous Supreme Court struck it down as a form of government censorship. The law required the government to refuse to register a trademark if officials thought it cast a negative light on individuals or groups.
The ruling may have its most visible impact for much of the public by allowing the pro football team in Washington, D.C., to continue getting trademark protection for their name, the Redskins. But its impact could well extend far beyond that particular controversy.
Several “Redskin” trademarks have been ordered cancelled by the government office that supervises trademark listings. The team’s owners have been fighting that withdrawal for years in the federal courts; those efforts may finally win, when the new Supreme Court ruling is taken into account by a lower court where that case is still pending. The Redskins’ trademarks were not at issue before the Supreme Court on Monday.
The law at issue, dating back to 1946 as part of the Lanham Act, provides that no one can register a trademark if government officials conclude that it would “disparage” or “bring into contempt or disrepute any person, living or dead.” Although on the federal law books for seven decades, the Supreme Court never directly confronted its constitutionality as a government attempt to regulate free speech.
It was challenged successfully by the leader of a Portland, Ore., dance-rock band that was named “The Slants.” That is a word, trademark officials concluded, that is a slur on Asian people. The band is made up of ethnic Asian players, who chose the name, they said, in order to “reclaim” it from its derogatory meaning and use it as a symbol of their ethnic pride.
A special federal appeals court that handles intellectual property issues agreed with the band that the disparagement provision represents an attempt by the government to interfere with speech because it supposedly conveyed a derogatory message about Asians. That is the ruling that the Supreme Court upheld, without dissent.
The court spoke through two main opinions, one written by Justice Samuel A. Alito, Jr., and one by Justice Anthony M. Kennedy. Those two opinions reached the same bottom-line result: the law is invalid as a government form of discrimination based upon a point of view. That is a form of attempted regulation of the actual wording in an expression.
The two main opinions reached the same outcome by somewhat different reasoning, with the Kennedy opinion speaking somewhat more expansively about the need to protect the expression contained in trademarks from censorship, and the Alito opinion spending more of its space rejecting arguments by federal government lawyers in an attempt to salvage the law.
The only Justice not taking part in the ruling was the newest member of the court, Neil M. Gorsuch, who was not on the court when the case arose.
. The court’s ruling on trademark free speech was one of several major rulings the Justices issued as they continued to press for the completion of their work so they can begin their summer recess, perhaps at the end of this month.
As of now, the court has 12 opinions remaining to be released this term. In addition to those, the court is faced with making up its mind this week or next on what to do with the Trump Administration’s appeals seeking to revive the Presidentt’s March 6 executive order imposing new restrictions on immigration.
(NOTE: In three posts below, this blog discusses some of the other rulings or actions by the court on Monday.)