Justices say law on offensive trademarks is unconstitutional

  • Justices say law on offensive trademarks is unconstitutional

Justices say law on offensive trademarks is unconstitutional

The American Civil Liberties Union (ACLU) called the ruling a "major victory for the First Amendment". I agree with her on this.' Essentially, it was eight to zero - essentially. On Monday, the Supreme Court sided with The Slants.

A view of the U.S. Supreme Court.

The debate here is over "government speech" vs either commercial speech or private speech. I really have no idea. But even if we're to accept that concept, copyrights and trademark approvals shouldn't apply here at all. If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. The next place for this argument very well may be the team's effort to get a new stadium, and Carter said politicians could use it as a part of the negotiation if taxpayer money is involved. The other justices concurred with the decision, but with a different opinion, written by Associate Justice Anthony Kennedy. The government wasn't attempting to simply silence offensive speech; it was, instead, using a lesser law to punish the speakers.

"I would expect the Redskins' counsel to file sometime this week, if not today". He starts off with the expected barrage of alarm bells over government-sanctioned bigotry and the collateral damage caused when the courts approve of slurs.

The band has said it wanted to reclaim what is often seen as a slur.

"It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend", Justice Samuel Alito said in his opinion for the court.

Trademark enforcement is a powerful means for businesses to silence expression they view as harmful to their commercial or political interests. The USPTO determined the mark was disparaging to Asian Americans and refused to register it. The result may chill protest.

On the one hand, good for them.

The U.S. Supreme Court may have just helped the Redskins keep their controversial name. The U.S. Code also includes a related prohibition on trademarks for "immoral" and "scandalous" matter. That's the "scalpel versus sledgehammer" argument. Chief Mosquito of the Piankeshaw tribe is recorded as having addressed an English officer in 1769, using the phrase, "if any red skins do you harm".

This is precisely the sort of situation which demands a sledgehammer. While the Redskins lost their Virginia case in 2015, the case will reappear in the Richmond-based Fourth Circuit Court. How would such a thing be measured and who would be empowered to determine when that bar has been reached? "But as a free-speech lawyer, you're often in the position of defending speech that you personally find distasteful".

In an open, capitalist society such as ours there is already a solution which is available, in place, and requires no intervention from the courts.

The court case may be good news for the National Football League team the Washington Redskins, who made similar arguments in 2014 after the trademark office ruled that their name was an offensive term and excluded from trademark. Taken literally, this provision would forbid the disparagement of the KKK, an institution; or Benito Mussolini, a person who is dead; or Vladimir Putin, a person who is living. That's all the judgement required in issues of potentially offensive speech, slogans or logos. Lee was relying on a Supreme Court decision that allowed Texas to ban specialty license plates with the Confederate battle flag. The question for the team is: "Why would you want to?"