The Supreme Court on Wednesday began hearing oral arguments for Lee v. Tam, an intellectual property case challenging a 71-year-old federal ban on "disparaging" trademarks. Immediately at issue is a Portland dance-rock band called The Slants, but how the case is decided is expected to have broader implications — including for the Washington Redskins.
The Slants' band members are Asian-American, and they wanted to trademark the name as a way to reclaim the slur. "I thought that was interesting," band member Simon Tam told The New York Times, because "we can talk about our slant on life on what it's like to be people of color." Tam grew up listening to bands that similarly took stigmatizing labels "and flip these assumptions on their heads." So when his trademark application got rejected, he assumed it was a paperwork error — until he noticed the rejection reason given was that the name is "disparaging to persons of Asian ethnicity." "Well, do they know we're of Asian descent?" Tam wondered.
Tam's case has now made it to the Supreme Court, where initial arguments see the justices skeptical of the government's claim to have a legitimate interest in preventing consumer "distraction" by disparaging trademarks, as well as the argument that trademarks, unlike copyrights, "generally have not historically served as vehicles for expression" of viewpoints which are protected as free speech.
As for the Redskins, their trademark was canceled in 2014 on grounds that it too is disparaging, in that case of Native Americans. The team has filed suit to regain the trademark, but if The Slants win their case, depending on the details of the decision, the Redskins might get their trademark back, too.