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"The Slants"
Topic Started: Jan 15 2017, 08:38 AM (144 Views)
George K
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Finally
Naughty Band Names

George Will

Quote:
 
In 1929, Chief Justice William Howard Taft persuaded Congress to finance construction of “a building of dignity and importance” for the Supreme Court. He could not have imagined what the court will ponder during oral arguments this Wednesday. The case concerns the name of an Asian American rock band: The Slants. And surely Taft never read a friend-of-the-court brief as amusing as one filed in this case. It is titled “Brief of the Cato Institute and a Basket of Deplorable People and Organizations.”

The U.S. Patent and Trademark Office is empowered, by the “disparagement clause” of a 1946 law, to protect American sensitivities by denying trademark protection to “immoral, deceptive or scandalous” trademarks. These have included those that a substantial portion of a particular group perceives as disparaging that group — an ethnic, religious, national or other cohort. The office has canceled the trademark registrations of entities named Mormon Whiskey, Abort the Republicans, Democrats Shouldn’t Breed, Marriage Is For Fags, and many more.

The Cato/Deplorables brief urges compassionate libertarianism: “This Court should make the jobs of the employees at the . . . [Patent and Trademark Office] much easier and put an end to the disparagement clause.” Government officials cannot be trusted to “neutrally” identify speech that disparages. Besides, “disparaging speech has been central to political debate, cultural discourse, and personal identity” throughout American history. The brief notes that a donkey became the Democratic Party’s symbol because someone called Andrew Jackson a “jackass” and he, whose default mode was defiance, put the creature on campaign posters. Entire American professions — e.g., newspaper columnists — exist in part to disparage.

Many rock bands pick names obviously intended to disparage or shock: Dead Kennedys, Dying Fetus, Sex Pistols, etc. Does the title of the best-selling book “Hillbilly Elegy” disparage a group? The Cato/Deplorables brief says: “One of this brief’s authors is a cracker (as distinct from a hillbilly) who grew up near Atlanta, but he wrote this sentence, so we can get away with saying that.” Then comes a footnote: “But he only moved to Atlanta when he was 10 and doesn’t have a Southern accent — and modern Atlanta isn’t really part of the South — so maybe we can’t.” Furthermore, the lead counsel on the brief “is a Russian-Jewish émigré who’s now a dual U.S.-Canadian citizen. Can he make borscht-belt jokes about Canuck frostbacks even though the first time he went to shul was while clerking in Jackson, Mississippi?”

When the government registers a trademark, it is not endorsing or subsidizing a product. It should not be allowed to use its power to deny registration in order to discourage or punish the adoption of controversial expressions. By registering trademarks, government confers a benefit — a legal right — on those who hold them. Trademarks are speech. The disparagement clause empowers the Patent and Trademark Office to deny a benefit because of the viewpoint of the speech. This is unconstitutional.

Trademarks are not commercial speech — essentially, advertising — which is accorded less robust protection than that given to other speech. Eugene Volokh, a UCLA law professor, one of The Slants’ lawyers and a blogger for The Post, correctly says that the band’s name is expressive speech. The Asian Americans of The Slants agree. They say they adopted this name “to take on these stereotypes that people have about us, like the slanted eyes, and own them.”

The Patent and Trademark Office applies the disparagement clause by assessing “what message the referenced group takes from the applicant’s [trade]mark in the context of the applicant’s use” and denies registration “only if the message received is a negative one.” The office, which has denied trademark protection for The Slants, has given it to a band named N.W.A. which stands for (a version of the n-word) Wit Attitudes.

The office’s decisions are unpredictable because they depend on the agency speculating about what might be the feelings of others in hypothetical circumstances. This vague and arbitrarily enforced law, if such it can be called, chills speech by encouraging blandness.

The office last earned the nation’s attention, if not its approbation, in 2014, when it denied protection to the name of the Washington Redskins, in spite of polls showing that 90 percent of Native Americans were not offended by the name and only 18 percent of “nonwhite football fans” favored changing it. Now the office sees a national problem in provocative, naughty, childish or tasteless band names. By doing this, the Patent and Trademark Office encourages something of which there already is an annoying surfeit — the belief that speech should be regulated hither and yon in order to preserve the serenity of those Americans who are most easily upset.


The band in question:

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- Mik, 6/14/08


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jon-nyc
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Cheers
Hard to disagree with the Cato piece on this.

But if they lose maybe they could call themselves The Epicanthic Folds.
In my defense, I was left unsupervised.
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George K
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Finally
jon-nyc
Jan 15 2017, 08:44 AM
But if they lose maybe they could call themselves The Epicanthic Folds.
:lol2:

That would be like the Hyper-Melanins, I suppose.
A guide to GKSR: Click

"Now look here, you Baltic gas passer... "
- Mik, 6/14/08


Nothing is as effective as homeopathy.

I'd rather listen to an hour of Abba than an hour of The Beatles.
- Klaus, 4/29/18
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Mikhailoh
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If you want trouble, find yourself a redhead
FFS
Once in his life, every man is entitled to fall madly in love with a gorgeous redhead - Lucille Ball
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Mark
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HOLY CARP!!!
Our government has been too big, for way too long. As evidenced by such ridiculous "puritan" bullsh!t like this, prohibition, and the war on drugs.
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Axtremus
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HOLY CARP!!!
jon-nyc
Jan 15 2017, 08:44 AM
Hard to disagree with the Cato piece on this.
+1
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Copper
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Shortstop

Hail to the Redskins!

http://www.foxnews.com/politics/2017/06/19/supreme-court-sides-with-slants-rules-ban-on-offensive-names-is-unconstitutional.html

Quote:
 
Supreme Court sides with The Slants, rules ban on offensive names is unconstitutional

The Supreme Court ruled Monday that a federal trademark law banning offensive names is unconstitutional, siding with a rock band whose name had been deemed racially disparaging by the U.S. Patent and Trademark Office.

In an 8-0 ruling, the court determined the law’s so-called “disparagement clause” violates the free speech clause of the First Amendment.

The case centered on Oregon-based, Asian-American band The Slants, which was denied a trademark because its name was considered offensive. The band countered that the 70-year-old law at issue violates free-speech rights -- and Justice Samuel Alito, in the court’s opinion, agreed.

“The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered,” he wrote.

The victory for the band could have broader implications and be welcome news for the Washington Redskins, embroiled in its own legal fight over the team’s name. The trademark office canceled the football team’s lucrative trademarks in 2014 after finding the word “Redskins” is disparaging to Native Americans.

At issue in The Slants’ case was a law that prohibits registration of trademarks that “may disparage ... persons, living or dead, institutions, beliefs or national symbols.”

A trademark confers certain legal benefits, including the power to sue competitors that infringe upon the trademark.

Slants founder Simon Tam said his goal was to reclaim a derisive slur and transform it into a badge of ethnic pride. But the trademark office said a term can be disparaging even when used in a positive light. A federal appeals court had sided with the band, ruling that the law violates the First Amendment.

Alito cautioned in his opinion that the government still “has an interest in preventing speech expressing ideas that offend.”

But he suggested the clause in question was too sweeping: “The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: ‘Down with racists,’ ‘Down with sexists,’ ‘Down with homophobes.’ It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.”

The Confederate soldier was peculiar in that he was ever ready to fight, but never ready to submit to the routine duty and discipline of the camp or the march. The soldiers were determined to be soldiers after their own notions, and do their duty, for the love of it, as they thought best. Carlton McCarthy
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Mikhailoh
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If you want trouble, find yourself a redhead
:yesgrin: :cheers: :clap:
Once in his life, every man is entitled to fall madly in love with a gorgeous redhead - Lucille Ball
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George K
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Finally
Unanimous.
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"Now look here, you Baltic gas passer... "
- Mik, 6/14/08


Nothing is as effective as homeopathy.

I'd rather listen to an hour of Abba than an hour of The Beatles.
- Klaus, 4/29/18
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