Friday, January 27, 2017

From the U.S. Supreme Court: Lee v. Tam

In the second GDHS class this morning we discussed another free speech case, Lee v. Tam. The case also touches on the copyright clause of the U.S. Supreme Court. While the free speech clause protects the ability of people to say disparaging things, these cannot be copyrighted since that would suggest that the national government approves of it.

Here's the transcript.
Here's the audio.
Here's detail from ScotusBlog.

Here is the question presented to the court:

Issue: Whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.

For background,

- Here is the Lanham Act
- Here is background on U.S. Trademark Law.

And here's a bit from ScotusBlog on the controversy in the case.

The debate over trademark rights and free speech has a long history. We shouldn’t forget it now, when trademark registration has become a First Amendment flashpoint. Trademark protection can promote expression, but it can also chill speech and debate. The dual nature of trademark means that sometimes limiting trademark rights – for example, by declining to register disparaging marks – actually advances First Amendment goals by curtailing private control over contested vocabulary and imagery.

In early trademark cases, courts understood that trademark claims were a form of commercial appropriation of language. Judges were accordingly skeptical about allowing private businesses to assert exclusive rights to words or phrases. Limiting expansive trademark claims was a way of keeping language in the public domain. As one court explained in 1883, the English language is “the common property of mankind,” belonging to all of us in “equal share.” Since those early days, doubts about the social benefit of robust trademark protection have faded. But the debate over who should “own” trademarked words and symbols, and to what degree, remains as relevant as ever.

In Lee v. Tam, the Supreme Court will consider a request by Simon Tam, an activist and the founder of an Asian rock band, to register his band’s name, “THE SLANTS,” as a federally protected trademark. The dispute in this case centers on a relatively obscure provision of the federal trademark statute, which denies registration to marks that “may disparage” individuals, institutions, beliefs or national symbols. Tam contends that his band’s name challenges stigmatizing stereotypes, but the U.S. Patent and Trademark Office denied registration after finding THE SLANTS disparaging to people of Asian ancestry. To Tam, the result is unconstitutional viewpoint discrimination and suppression of speech – all the more harmful and arbitrary because of his record of political activism and advocacy on behalf of Asian-American groups.

For more on viewpoint discrimination, click here.

Viewpoint discrimination is the term the Supreme Court has used to identify government laws, rules, or decisions that favor or disfavor one or more opinions on a particular controversy. For example, a government official who permitted ‘‘pro-life’’ proponents to speak on government property but banned ‘‘pro-choice’’ proponents because of their views would be engaged in ‘‘viewpoint discrimination.’’ Courts may also describe this constitutional requirement by saying that government laws and decisions must be ‘‘viewpoint neutral.’’ In recent decades, viewpoint discrimination has been distinguished from content or subject matter discrimination, which involves government regulation of an entire topic or subject, such as abortion, war, or sexual speech, either by punishing those who use this kind of speech (such as obscenity) or by completely excluding the subject from discussion on particular government property or in public forums.

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