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The U.S. Supreme Court heard arguments today in a case brought by an Asian-American rock group that calls itself The Slants. The group is challenging the 1946 trademark law which bars the government from registering trademarks that disparage individuals or groups. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The band members acknowledge that the name they picked for their group is viewed as offensive and racist by many Asian-Americans. But they say they're seeking to reclaim the term and make it something positive. Simon Tam is the group's bass player.
SIMON TAM: We fought this case for nearly eight years now because we want to prevent the government from discrimination based on viewpoint.
TOTENBERG: The government counters that there's nothing in the law that prevents The Slants from speaking out through their music. Indeed they're entitled to trademark their name, but when it comes to getting the extra protections afforded by registering the name with the U.S. Patent and Trademark Office, the law bars such racial slurs.
Inside the Supreme Court chamber, the argument was fast and furious with almost all the justices, liberal and conservative, beating up both sides ferociously. Defending the law, Deputy Solicitor General Malcolm Stewart argued that Congress reasonably put a limit on what kinds of names the government should give its imprimatur to with a trademark registration that's published throughout the world.
Justice Kennedy - but to ignore the fact that we have a culture in which we have T-shirts and logos and rock bands and so forth that are expressing a point of view - Justice Breyer - the government is saying, you can say something nice about a minority group, but you can't say something bad about them.
The government's Stewart replied that the function of a trademark is to tell the public the source of the goods or services. It's not expressive in its own right, he said. And while most trademarks seek in some way to advertise or promote, Congress justifiably barred disparaging marks.
Justice Kagan - I can say all politicians are virtuous, but I can't say all politicians are corrupt? Why is that not viewpoint discrimination? It's not that simple, replied Stewart. Here, Congress reasonably barred registering disparaging trademarks in the same way that a public university might set aside a room for students to post messages as long as those messages contain no racial epithets or personal attacks. Justice Kennedy, caustically - so the government is the omnipresent schoolteacher. Is that what you're saying?
Moments later, The Slants lawyer, John Connell, also found himself facing a barrage of hostile questions. Justice Kennedy - what if this band were non-Asians, wore makeup to exaggerate slanted eyes and made fun of Asians? Could the government decline to register that as a trademark in your view? Answer - they could not.
Justice Sotomayor - but you're asking the government to endorse these names with a trademark registration. Justice Breyer - do you believe the government can stop trademarks from saying Joe Jones is a jerk? Answer - they could not stop that. Justice Breyer, incredulous - so they could not stop a trademark that says Smith's beer is poison? They could not. Justice Breyer - my goodness, there are laws all over the place that stop you from saying that.
Justice Ginsburg - could the government refused to register a trademark using one of George Carlin's seven dirty words? No, replied lawyer Connell. That would be a burden on speech. Ginsburg - even though this court said it was OK to ban those words from the airwaves? Justice Alito - you say the expressive and commercial aspects of the trademark are intertwined. If that's true, could the government ban cigarette manufacturers from putting a message on the packages saying great for your health; don't believe the surgeon general?
Lawyer Connell seemed to suggest such a message ban would be unconstitutional. At the end of the day, viewing the argument as a whole, one could only say it was schizophrenic. Nina Totenberg, NPR News, Washington.
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