Slants – "From the Heart" (2016)

The language of oppression

Will lose to education

Until the words can’t hurt us again

In 2006, musician Simon Tam and several other Asian-American musicians put together a synth-pop band called the Slants.  

In 2010, Tam applied for a federal trademark for his band’s name.  But a federal statute prohibits the registration of trademarks “which may disparage . . . persons, living or dead.”  So an examiner at the U.S. Patent and Trademark Office (“USPTO”) rejected Tam’s application because “slants” is a derogatory term for Asian-Americans.  

Simon Tam at the Supreme Court building

Tam appealed that denial and later took the USPTO to court.  The case eventually made it to the U.S. Supreme Court, which ruled last week that the denial of the trademark as disparaging violated the right to free speech guaranteed by the Constitution.

In other words, it’s none of the government’s business whether your trademark insults a person or group of people.  You can still register it.  

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Tam always denied that the name of his band was disparaging.  Here’s an excerpt from a brief his lawyers filed with the Court:

In choosing that name, Tam was following in the long tradition of “reappropriation,” in which mem- bers of minority groups have reclaimed terms that were once directed at them as insults and turned them outward as badges of pride.  In recent times, the most conspicuous examples have been words such as “queer,” “dyke,” and so on – formerly derogatory terms that have been so successfully adopted by members of the gay and lesbian community that they have now lost most, if not all, of their pejorative connotations. . . .

The Slants

“The Slants,” as used by Simon Tam to refer to his band, is not disparaging.  Whether a word is disparaging depends primarily on context.  Even “nigger” and its variants are not disparaging when used with pride and understood that way. . . . 

The Slants’ case is getting a lot of attention in Washington because the local NFL team – the Redskins – has been battling with the USPTO over whether its name is disparaging to Native Americans.  It looks like the Redskins will win that fight now. 

(Keep in mind that a USPTO refusal to register the Redskins’ trademark doesn’t mean that the team can’t call itself by that name.  In fact, a refusal by the USPTO to register that trademark wouldn’t mean that the Redskins were without trademark protection for the team’s name – such a trademark would still have some protection under state and federal law.  But having a USPTO-registered trademark does give the trademark holder certain legal advantages that it wouldn’t have otherwise.)

Not surprisingly, Simon Tam distances himself from the Redskins or the team’s owner, Dan Snyder.  For him, there’s a big difference between an Asian-American band that calls itself the Slants and a white-owned football team that has no Native American players that calls itself the Redskins.

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In 2015, the Supreme Court ruled that the state of Texas could refuse to issue specialty license plates that depicted the Confederate flag without violating the First Amendment.

A state couldn’t prohibit the display of Confederate-flag bumper stickers on cars without violating the First Amendment rights of car owners.  But while a bumper sticker is a form of individual speech, a license plate is speech by the state government that issued it – not speech by the driver.   

(How that 2015 decision can be reconciled with the 1977 decision holding that a New Hampshire driver had the right to cover up the “Live Free or Die” slogan on that state’s license plate is beyond me.)

The USPTO’s lawyers argued that a federally registered trademark was government speech as well – not speech by the trademark applicant.  But the Court rejected that argument faster than you can Jack Robinson.

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The same federal statutory provision that prohibits disparaging trademarks also prohibits “immoral . . . or scandalous” trademarks.  

The decision in the Slants’ case doesn’t address immoral or scandalous trademarks, but I have to think that the same free speech arguments would apply.

Having said that, THE CONTENTS OF THIS SITE ARE OFFERED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE!  YOU SHOULD CONSULT DIRECTLY WITH AN ATTORNEY FOR INDIVIDUAL ADVICE REGARDING YOUR PARTICULAR SITUATION!!  I AM NOT YOUR LAWYER UNDER ANY CIRCUMSTANCES!!!

(Comprende, mi amigo?)

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If you believe in free speech, you should really buy today’s featured song – or any song by the Slants.  (You can click here to go to the Slants’ website and check out their other music.)

After all, litigating with the U.S. government for seven years costs a boatload of dinero, and the Slants aren’t exactly Justin Bieber or Katy Perry when it comes to record sales.

Here’s “From the Heart,” which was released last year on an EP titled The Band Who Must Not Be Named:

Click below to buy the song from Amazon: