Monday, December 19, 2016

Can the Government Make a Band Change its Name?

Simon Shioa Tam has been described as an "Asian-American musician, lecturer, and political activist." He also performs in a bank known as The Slants. In his own words, the band, by using that name, is "following in the long tradition of reappropriation, in which members of minority groups have reclaimed terms that were once directed at them as insults and redirected the terms outward as badges of pride."

As any savvy bandleader hoping to hit the big time would do, Mr. Tam filed a trademark registration for his band's name. However, the U.S. Patent and Trade Office denied his application due to the "disparagement clause" in the federal trademark statute, which bars the registration of "matter which may ... disparage person, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute." 

Mr. Tam appealed the denial of his trademark application -- several times. His case is currently schedule for argument before the U.S. Supreme Court on January 18, 2017. The case has drawn considerable attention, especially considering the political climate over the past year and the President-elect's propensity to make broad generalizations based on people's race.

The Cato Institute and a "basket of deplorable people and organizations," including Ralph Steadman and the Flying Dog Brewery, have filed an amicus curiae brief arguing in favor of The Slant's trademark application. The "friends of the court" make several compelling arguments against governmental involvement, including that disparaging language serves an important role in our society, that rock music has a long tradition of pushing the boundaries of expression, and that the First Amendment prevents the Government from dictating what is or is not an offensive slur.

I wanted to share the brief for several reasons. First, it is not every day that you see citations to the U.S. Supreme Court from works by South Park, Seinfeld, Chris Rock, Dr. Dre, N.W.A., Cypress Hill, and the Geto Boys. Also, I wonder how many Supreme Court Justices have songs on their iPods by the Queers, Hillbilly Hellcats, Rapeman, Snatch and the Poontangs, Dying Fetus, or some of the other offensively-named bands listed in the brief.

Lastly, for my practicing lawyers out there, the brief is beautifully written. From the simple question presented to the plain-spoken summary of the argument, the brief is a persuasive, direct, and well-organized gem of legal writing. HERE is a link to brief and it is embedded below. 


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