Slants, Redskins, Your School’s Mascot and the Constitution

Fans of the Washington Redskins and Cleveland Indians are probably very pleased by the Supreme Court’s decision about a rock band.  The band filed for a trademark for its name.  The Trademark office turned them down because its name violated the “disparagement clause” in the Patent and Trademark laws.  The disparagement clause prohibits the registration of any trademark that may “disparage…or bring into contempt or disrepute” and “persons living or dead.”  The band was called The Slants, a term that is commonly understood to be a derogatory reference to people of Asian descent.   The band members were Asian Americans themselves, and they chose this name in an effort to “reclaim” it.

SCOTUS held that the disparagement clause is unconstitutional.  The Court described the clause as “a happy-talk clause” designed to prevent the expression of ideas that offend.  Justice Alito’s opinion for the majority shot that down:

And, as we have explained, that idea 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.”  United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).

This will not stop people from protesting the use of the name “Redskins” for the Washington football team, but it will likely sack any legal challenge to that name. And the same goes for any school mascot name that people find offensive.  In fact, public schools would have an additional strong argument to make to defend their school mascot—it is “government speech.” The government is not restricted by the First Amendment.

The case is Matal v. Tam, decided by the Supreme Court on June 19, 2017.


File this one under: FIRST AMENDMENT

Tomorrow: what will SCOTUS say about vouchers going to religious schools?