Free Speech on Campus

Professor Lee Epstein and Chancellor Andrew D. Martin

Political Science 334

Fall 2020


THE REAPPROPRIATING BAND (NOVEMBER 18)

Case Study

Founded by Simon Shiao Tam, The Slants is an Asian-American rock band that often records and plays on college campuses. Tam's goal in forming the band was not only to play music; he also saw it as a medium to express his concern with discrimination against Asian Americans. For this reason, he hired Asian-American band members and decided to call the band "The Slants.'' It was his way of transforming ("reappropriating'') a term often understood as derogatory to Asians and people of Asian descent into a "badge of pride.'' In Tam's words: "We want to take on these stereotypes that people have about us, like the slanted eyes, and own them.''

In 2011, Tam filed an application to register THE SLANTS as a trademark. Under a section of a U.S. federal law (the Lanham Act), the Patent and Trademark Office (PTO) is supposed to refuse to register trademarks that "disparage ...persons, living or dead, institutions, beliefs, or national symbols.'' Believing that THE SLANTS refers to and disparages "persons of Asian ancestry,'' the PTO refused registration.

Tam appealed the PTO's decision, claiming, first, that the term THE SLANTS is not disparaging— at least not in the way the band used it. To Tam, the PTO failed to consider the context of the speech, which was the opposite of disparaging; it was, he said, an attempt at reclamation or reappropriation. Second, Tam argued that the "disparagement'' clause of the Lanham Act violates the First Amendment because the clause discriminates on the basis of viewpoint: it unjustifiably permits favored but not disfavored messages.

In response, the government claimed that the First Amendment gives Tam freedom to use THE SLANTS to identify his band free from government intervention or reprisal. But the Amendment does not "confer an affirmative right'' to government assistance—in the form of trademark protection—for that expression. The government also attempted to counter Tam's argument of viewpoint discrimination:

Respondent contends [the disparagement provision of the Lanham Act) discriminates on the basis of viewpoint. But [that provision] is "not an effort to suppress expression merely because public officials oppose the speaker's view.'' Marks that disparage Democrats and marks that disparage Republicans, for example, are equally unregistrable. ...

Respondent also contends [the disparagement provision] turns on viewpoint because it permits registration of marks that "express a positive or neutral view of a person,'' but not those that "express a negative view.'' But [the provision] does not "disfavor one side of a debate,'' since no side may register racial epithets or personal insults. The Court made this point in R.A.V. v. City of St. Paul (1992), when it explained that a statute prohibiting the use of "odious racial epithet'' by "proponents of all views'' would not discriminate based on viewpoint.

In June of 2017, the U.S. Supreme Court ruled in favor of Tam and the band got its sought-after trademark.

Readings

  1. The U.S. Supreme Court’s decision in Matal v. Tam is here. Please focus Parts I, II, III-A in the majority opinion and Justice Kennedy's concurrence.

  2. The court below the U.S. Supreme Court (the Federal Circuit) also ruled in favor of Tam but there were some dissents. Please read them here.

Section/Class Activities

Simon Tam will speak to our class on November 18. In your section meeting, you'll review the case study and the relevant legal doctrine. You'll also consider these questions.

  1. Is reappropriation is an acceptable strategy in all contexts? What about a professor using highly derogatory labels in class during a discussion of, say, reappropriation?

  2. Should universities allow The Slants to play on their campus? What if an avowed (hypothetical) homophobic band, called The Queers, wanted to play? Same answer? To what extent do speaker identity and motives matter? Should they matter?