The Supreme Court ruled unanimously today that trademark protections should extend to names and words that may be offensive—something which gives the Washington Redskins, the group with perhaps the most famously offensive name in the country, a huge boost in its quest to keep its racist legacy.
The Court ruled in favor of The Slants, an Asian American rock band who had been denied a trademark on their name because of a 1964 law that banned trademarks that “disparage or bring ... into contemp[t] or disrepute” any individuals or groups. In the case of The Slants, their name alluded to a slur for Asian Americans—one the band sought to reclaim.
“The disparagement clause violates the First Amendment’s Free Speech Clause,” Justice Samuel Alito wrote in the Court’s opinion, adding that trademarks are private, not government, speech which therefore cannot be infringed.
Monday’s ruling could immediately impact the Redskins, whose trademark registrations were cancelled in 2014 for their controversial name.
A team spokesperson commended today’s ruling:
While the team’s amicus brief was cited in the Court’s opinion, the ruling doesn’t apply to its particular case—yet. According to The Washington Post, The Redskins’ trademark case is currently sitting in the Fourth Circuit Court based in Richmond, VA, pending today’s Supreme Court decision.
As critics of the overturned trademark law have noted, what’s deemed offensive or not is inherently subjective. The federal trademark registration office has also been accused with inconsistently applying the law, as an NPR piece from May reported.
In that Planet Money piece, which delved into how trademarks are ruled offensive, terms like “Drunk ass bitches,” “Flea market hookers,” and “FUPA pouch” were all approved for trademarks. “Meat holes,” however, was not.
Others worry that this will open the floodgates for all sorts of hateful trademark registrations.
As Lisa Simpson, an intellectual property lawyer in New York, told The Washington Post, “While this may be the right result under the First Amendment and the principles of free speech that are foundational to our country, it seems the responsibility will now pass to the public.”
As with other verdicts issued this summer, Neil Gorsuch, who wasn’t sitting on the court when arguments were heard, did not participate in the decision.