Citing Section 2a of the Lanham Act, the Trademark Trial and Appeals Board has affirmed the rejection, earlier this year, of the band name “The Slants.” Section 2a prohibits, among other things, the registration of “matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols.” The examiner felt the name was offensive to people of East Asian origin. The applicant, Simon Tam, argued that the term has not been used as a racial slur since the 1940’s. He has filed an appeal.
The Trademark Board’s decision seems strange, given that all the members of the band are of Asian origin. Their expressed intention was to “take ownership” of the racist history connoted by the term, not to disparage themselves or to bring themselves into contempt or disrepute. It does not appear that any evidence of anyone actually being offended by the band’s use of the term was introduced.
Although the parties have focused their arguments on the question whether the term is a disparaging one or not, to my mind the case raises an important First Amendment issue: Is a grant of authority to a federal official, to withhold trademark registration on the basis of what the official thinks might be offensive, consistent with the First Amendment? The USPTO thinks it is, reasoning that a refusal of registration does not prevent a band from using the name, and therefore does not suppress expression. In re McGinley, 211 USPQ 672 (1981). But is this reasoning really valid? It is true that denial of registration does not prevent an applicant from using the name, but registration does confer a special status that determines eligibility for important federal benefits, not the least of which is the benefit of a presumption of a right to exclusive use of the name. It is a fundamental tenet of First Amendment law that even when the government regulates in a way that impacts or discourages speech without actually prohibiting it altogether, it must do so in a content-neutral way. Some content-specific regulation is permitted in the case of commercial speech. Even commercial speech regulation must be “narrowly tailored” to serve a substantial government interest, though. Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980). Can authority to deny federal benefits on the basis of an official’s belief that it “may disparage” a person or a belief really be said to be “narrowly tailored” to serve an important government interest? If so, then how is it that a firm using the word “Squaw” to sell skis, or a record company calling itself “True Niggas Only,” can claim benefits offered by the federal trademark office, but a band calling itself The Slants cannot?
There are signs that the Supreme Court may be moving toward subjecting regulations of commercial speech to the same strict scrutiny analysis that is applied to regulations of other kinds of speech activity. The distinction between commercial and artistic expression is neither clear nor clearly mandated by the language and history of the First Amendment. The time may be ripe for a constitutional challenge to Section 2a.