The Real Takeaway From the Matal v. Tam Decision

By Michael GrossmanAugust 09, 2017Reading Time: 3 minutes

The Supreme Court of the U.S. recently ruled that individuals have the right to trademark offensive words and phrases for the sake of using them as company or product names. This unanimous decision is absolutely a victory for proponents of free speech (even if it seems like the mean-spirited kind), but it actually has a more important takeaway if you read between the lines a bit.

The Case: Matal v. Tam

For those who may not have encountered their music, The Slants are a rock band hailing from Portland, Oregon. They're in the news today because they're at the heart of the case that went before the Supreme Court (SCOTUS).

In case it is unfamiliar, "slant" is an insulting pejorative term for people of Asian descent. As with most ignorant racist terms, it's an exceedingly rude way to refer to a diverse and culturally-rich ethnic group. Plot twist, though: The band's members are all of Asian heritage.

The band considered the name a "reclamation" of a negative term, and chose to own it rather than allow it to be used against them. Trademarking the name was just a secondary business decision because a trademark confers important property rights, allowing them to better merchandise and "sell" the entity they created--The Slants.

Unfortunately, the U.S. Patent and Trademark Office wouldn't let singer Simon Tam register "The Slants" because it typically resists trademarking offensive terms. Naturally, he took issue with that denial. In the band's estimation, the government's zeal to protect the public from "mean words" actually infringed up on the free-speech provisions of the First Amendment. By denying Tam his trademark because the band name could be considered offensive, the feds had in effect exercised censorship over his speech. That's a no-no.

The Ruling

After hearing the case, SCOTUS ultimately concluded that the government is in fact violating the First Amendment by refusing to grant The Slants their requested trademark. The justices actually agreed unanimously that free speech was being suppressed in this instance; in his opinion, Justice Samuel Alito wrote:

[The idea that the government may restrict] speech expressing ideas that offend ... strikes at the heart of the First Amendment. 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."

Dialing it back a little from the grandiose language used by the Supreme Court, Justice Alito is saying that one of the best things about the First Amendment is that it protects all forms of speech--even that which some might find repugnant. Racial epithets are detestable, of course, but they're not illegal. Even if they're meant to be incendiary, we can't afford to start parsing "acceptable" and "unacceptable" speech like that. It's an impossibly slippery slope: The moment someone's right to express himself is restricted, it ratifies the belief that people's rights can be cherry-picked. The court of public opinion can react in whatever (legal) manner it deems best to objectionable speech, but the law itself shouldn't try to shut disagreeable mouths.

Justice Anthony Kennedy wrote another opinion that touched on the evils of government control over speech:

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. The First Amendment does not entrust that power to the government's benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

In that we find the same slippery-slope argument: To control one group's expression is to set a precedent for controlling others', and that can't be allowed in a nation so proud of its freedom of expression.

What Does This Mean?

The ruling was handed down quite recently, but it has already sparked serious debate about the more far-reaching implications it might have. One example with a considerable history of public pushback for its offensive name is the NFL franchise the Washington Redskins. I'm not really qualified to speculate too much on the ripples this decision might cause in patent and copyright law, but for me, this ruling illustrates something far more important. The case was decided unanimously.

If you've watched any news in the past 40 years or so, I'm sure you've heard all about how divided our country is, and nowhere is that supposedly more evident than in the SCOTUS, who allegedly can't agree on anything. These days Ruth Bader Ginsburg is often painted as a liberal feminist icon, whereas the late Antonin Scalia was viewed as a contrarian originalist. Add Justice Thomas's thick portfolio of written dissents and Justice Sotomayor's fiery opinions on and off the bench, and it seems like there's a lot of opportunity for contention.

How often would you think the justices rule unanimously? Five percent of the time? Ten? Maybe 20? Nope! It's actually the majority of the time. As it turns out, SCOTUS rules unanimously far more often than it is divided, because this isn't an episode of The Real World and their clashing personalities don't matter when they're settling issues of law.

In sum, free speech is still safe and the people who voted to preserve it are far more united in their efforts than they may seem sometimes. Class dismissed.