Racial slurs®

“Strong language” covers a lot of speech, from profanity to racial and ethnic slurs. The slurs got a big boost on 17 June 2017, in a United States Supreme Court decision. Until then, the Lanham Act of 1946 — which governs American trademark law — prohibited use of derogatory terms like slurs in federally approved trademarks. To quote the Act, trademarks may not “disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The Court unanimously decided instead that trademark owners can disparage with abandon and bring others into contempt or disrepute deliberately or with disregard.

In the words of Justice Samuel Alito, who wrote the majority opinion, Simon Tam — founder of The Slants, the first all Asian-American dance-rock band — applied “for federal trademark registration of the band’s name […]. ‘Slants’ is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to ‘reclaim’ the term and drain its denigrating force.” The United States Patent and Trademark Office refused the application because slant refers to the disparaging stereotype that people of Asian heritage are “slant-eyed.” The band hoped to “‘take ownership’ of stereotypes about people of Asian ethnicity.” The USPTO obstructed that re-appropriation.

Tam and The Slants proved resilient litigants, however. Eventually, the dispute escalated to the Supreme Court. The Court decided that the Lanham Act’s disparagement provision offends the First Amendment to the Constitution of the United States — which among other things protects freedom of speech and expression — and thus invalidated the relevant section of the Act, overturning a fundamental presumption about what sort of speech trademarks should or should not be.

For the Court, the central issue was obvious: “With few narrow exceptions,” Alito writes, “a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys.” Slurs are cruel, but government isn’t the arbiter of cruelty, at least, not in speech. If it pretends to that power, the government is guilty of “viewpoint discrimination,” as the Court found it was in Matal v. Tam. “Giving offense is a viewpoint.” Thus, slurs are protected from government interference by the First Amendment.

“Tam and his amici,” the opinion continues, persuaded the Court “that many, if not all, trademarks have an expressive component. In other words, these trademarks do not simply identify the source of a product or service but go on to say something more, either about the product or service or some broader issue. The trademark in this case illustrates the point. The name ‘The Slants’ not only identifies the band but expresses a view about social issues.” One may vehemently disagree with that view or the use of a slur to express that view, but, in America, government cannot suppress the slur because of its or anyone’s disagreement with the view, some of which can be expressed only with a slur.

Before Tam’s victory over the USPTO vacated it, the disparagement clause had stopped businesses from trademarking slurs, perhaps most famously in the case of the Washington Redskins. Geoffrey Nunberg — one of America’s most prominent forensic linguists — advised the Native Americans who challenged the team’s name as a disparagement. As he wrote in The Atlantic (23 June 2014), “You have the right to pick a slur for your product name, the thinking goes, but you can’t expect the government to protect your exclusive use of it by restricting the speech of others. That was the argument of the petitioners who first asked the US Trademark Office to cancel the mark in 1995, initiating a legal process that would wind up 19 years and two trials later in last week’s decision that the mark should be canceled, which is where things stand pending appeal.” The appeal is now moot. Tam’s victory enables the Redskins to recover their trademark and use it regardless of how offensive it is to a perennially insulted group of Americans.

When I say that slurs got a big boost in the decision, I don’t mean that the Court endorses racial or ethnic slurs, let alone promotes them. Nevertheless, some — not just the Redskins and their fans —will celebrate the decision for the wrong reasons. They will see the Court overturning so-called political correctness. Indeed, according to Nunberg, the football team’s legal strategy — at least, part of it — dismissed so-called politically correct disapproval of its brand: “The team’s attorneys and linguistics experts argued that this demonstrated that the term had never really been disparaging — just a ‘robust informal synonym’ for ‘American Indian,’ which dictionaries only started to label as offensive in response to political pressure from a few Indian activists.”

What some call political correctness, others might call common decency. We can resist slurs if we like. The Court didn’t tell us to use them. It just said the government can’t keep us from using them. One needn’t offend just because there’s an opportunity to offend. In fact, because many will resist slurs in the marketplace, refusing to participate in derogatory brands, a surge of trademarked slurs seems unlikely. There’s plenty at stake ethically for those who chant derogatory terms to cheer on a football team. As Nunberg points out, “When you a pronounce a slur, you affiliate yourself with the attitudes and actions of all the people who have used it before you, whatever your personal feelings about the group it refers to. There’s no exemption for good intentions, or even for ignorance.”

The Supreme Court’s opinion is so important because it absolutely does not accept the Redskins’ defense. It insists that The Slants is derogatory, and Redskins — while similarly protected under the ruling — is similarly derogatory. They aren’t arbitrary brand designations. They aren’t neutral terms or “robust informal synonyms.” They are bad words Americans now have a right to register as trademarks, if they want to. And Americans have that right because — and this is the important part — the slurs express viewpoints. The Court accepted that The Slants’ re-appropriation of a derogatory term expresses a sociopolitical point of view. But such an act can only be meta-expressive if the slur is also expressive. Of course, Native Americans and their allies already knew that Redskins expressed a racist viewpoint. The law no longer protects them from its use, but the opinion disallows prevarication and dishonesty about what sort of viewpoint it is, while acknowledging the expressive power of slurs and arguably other sorts of strong language.

Justice Anthony Kennedy wrote, in his concurring opinion, “This case does not present the question of how other provisions of the Lanham Act should be analyzed under the First Amendment. It is well settled, for instance, that to the extent a trademark is confusing or misleading the law can protect consumers and trademarks owners.” In fact, other provisions of the Lanham Act address other types of expressive language — strong language — and the Supreme Court’s reasoning in Matal v. Tam suggests that America may be entering a new legal future, when the government may no longer regulate use of profanity and other bad words.