Commentary Magazine

The Marketplace of Ideas on Trial

AP Photo/Nick Wass

Last week, the Supreme Court agreed to hear oral argument in Lee v. Tam, a case that could determine whether the United States Patent and Trademark Office (PTO) is an agency whose function is to “promote the Progress of Science and useful Arts” or a panel of moral censors tasked with policing the marketplace of ideas.

At issue is the constitutionality of a federal law prohibiting the registration of trademarks that “may disparage… persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”

The plaintiff is Simon Shiao Tam, founder of the self-styled “Chinatown Dance Rock” band, The Slants. Tam states that he chose the name for his all-Asian band in order to confront racial stereotypes head-on. When the Trademark Trial and Appeal Board refused to trademark the band’s name on the ground that “a substantial composite of the referenced group find the term objectionable,” Tam appealed the holding to the federal Court of Appeals. The Court remanded the matter to the trademark board, holding that the name was indeed “disparaging” but that the federal non-disparagement rule violated the First Amendment by unconstitutionally burdening free speech.

The PTO appealed the circuit ruling to the Supreme Court, defending its power to refuse trademarks on the basis of disparagement. The high court agreed to hear oral arguments during the current term; and though a date has not been set for oral arguments, the parties have filed their initial briefs.

The PTO contends that the statutory prohibition does not burden speech because Mr. Tam’s band is free to continue performing under the name “The Slants”—it just cannot enjoy the commercial benefits associated with a trademark of the name. However, the PTO’s brief reveals a vexing motive underlying the rule: deterring offensive speech.

Buried amid arguments about the nature of trademarks and the disparagement standard is a telling claim: “The government has a substantial interest in creating a federal trademark-registration program and in declining to use its resources to encourage use of offensive or disparaging terms as marks.” The justices would do well to probe this claim during oral argument.

To be sure, the government may refuse to subsidize speech on the basis of its content. For example, the government may refuse grant funding to artists because their work is viewed as offensive or obscene. But trademarks are not subsidies. Quite the contrary, the trademark system is funded by applicants. Parties seeking trademarks pay the government to review their applications and make a decision.

In addition, unlike publicly funded art, trademarks attach to private property. Thus no reasonable person would conclude that by granting a trademark to “Don Kike,” “Uppity Negro” (trademarked twice,) or “Fagdog” (trademarked three times) the federal government was espousing such speech as its own. Nor, for that matter, would a brief perusal of the racial epithets that the PTO has trademarked inspire the slightest confidence that the agency applies the disparagement standard coherently.

Trademarks secure the holder’s exclusive rights in his intellectual property. They help constitute a vibrant commercial marketplace of brands that consumers can support or repudiate with their wallets and their voices. They constitute a true marketplace of ideas.

Nowhere is this more evident than in the ongoing controversy over the Washington Redskins football team, which is presently challenging the PTO’s cancellation of its trademarks on disparagement grounds in the Fourth Circuit. Ask anyone in a DC sports bar whether they have an opinion on the team’s name and a spirited discussion is likely to ensue. Indeed, some sports broadcasters and media outlets have opted to refer to the team as the “Washington football team” instead of by its official name, but they have done so as a matter of choice.

If this controversy illustrates anything, it is that American consumers can be trusted to decide for themselves what is disparaging and what is not. There is no greater repudiation of an idea than literally not buying it.

The Redskins franchise should not be alone in watching Lee v. Tam closely–there is a lot more on the line in the case than a trademark. At issue is whether a government agency has the power to subordinate individual liberties to personal sensitivities. Constitutional rights to free speech and private property cannot be conditioned on the approval of de facto moral censors.

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