(Warning: this diary, of necessity, contains language which may offend.)
As Simon Shiao Tam explained it to the Supreme Court, when he formed a rock band in 2006, his “purpose was not just to play music. He also intended the band to be a vehicle for expressing his views on discrimination against Asian-Americans. To that end, he recruited Asian-American band members, and he called the band The Slants … We want to take on these stereotypes that people have about us, like the slanted eyes, and own them.”
The band wanted to trademark the name—which is crucial if you want to make sure no one else can sell your merchandise, for instance. Problem was, there’s this thing in the trademark law that says you can’t register a trademark for something that “may disparage … persons, living or dead … or bring them into contempt, or disrepute.” And their trademark
was denied on that basis back in 2011, with various examiners and later courts holding that the term was “disparaging to persons of Asian descent,” “likely offensive to a substantial composite of people of Asian descent,” etc.
Today, the Supreme Court of the United States was unanimous in holding that this nondisparagement policy was unconstitutional, though the Court was divided 4-4 on some of the reasoning. They agreed unanimously that the federal government couldn’t defend this policy on the ground that its granting a trademark was like its adopting the trademark (a “retweet does not equal endorsement” theory). But what made it unconstitutional?