Justice Anthony Kennedy, in a concurring opinion, said the government can regulate speech only in narrow, already established areas such as fraud, defamation and incitement.
The court unanimously ruled the federal government can not refuse to register trademarks for being disparaging.
Band frontman Simon Tam has said he chose to call the band The Slants to reclaim a term some consider a derogatory reference to Asian people’s eyes, and wear it as a “badge of pride”.
“The Team is thrilled with today’s unanimous decision as it resolves the Redskins’ long-standing dispute with the government”, Washington’s attorney Lisa Blatt said in a statement.
“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful”, Alito adds, “but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate'”.
The Washington Redskins’ name is commercial speech and isn’t the kind of free expression protected by the First Amendment, the Obama administration told a federal court this week in defending a ruling that has stripped the football team of trademark protections.
In a filing Monday, the Justice Department defended the Trademark Trial and Appeal Board’s decision past year to strip the team of protections. “And, as we have explained, that idea strikes at the heart of the First Amendment”. “It’s OK if you want to say something nice and positive, but you can’t do it if it’s disparaging”.
The government appealed that ruling to the Supreme Court. And now with The Slants’ win at the court, the Redskins team may soon be able to also get its name trademarked as well. In fact, the USPTO has even approved trademark applications for other groups that have included the word “slant” or “slanted” in their names or logos-the difference being those groups were owned or organized by Caucasians.
That trademark office ruling capped a fight that began in 1992 when another group of activists sued – and lost – in an attempt to block the team’s use of the name.
The Supreme Court ruling in the Slants case will likely give the Redskins leverage in their own court battle. Don’t be surprised if it surfaces again sooner rather than later. But using the power of the federal government to punish them should not be an option. Based on Monday’s decision, there is a strong chance the court will rule in favor of the Redskins.