On Monday the Supreme Court, in a rare unanimous decision, ruled in Matal v. Tam that the government’s definition of political correctness does not trump the freedom of speech.
The case stems from the US Patent and Trademark Office refused to register an Asian-American rock band’s name, The Slants, claiming it might offend some people. They cited the “disparagement clause” of the 1946 Lanham Act that specifies what types of requests can be refused.
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—
(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute…
Justice Samuel Alito writing the court’s opinion pointed out how the disparagement clause infringed First Amendment rights:
We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.
Alito also notes the chilling effect the government can cause on speech through the use of this clause.
If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents.
He said that trademarks can’t be seen as government speech.
…it is far-fetched to suggest that the content of a registered mark is government speech. If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things…..
None of our government speech cases even remotely supports the idea that registered trademarks are government speech.
He then addressed what he said was the most worrisome implication of the government’s argument.
If federal registration makes a trademark government speech and thus eliminates all First Amendment protection, would the registration of the copyright for a book produce a similar transformation?
This decision marks a major victory for free speech.
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