SCOTUS and the Slants

Meet the Slants.  For those of you who didn’t bother to click on the link, the Slants are an all Asian-American dance rock band from Portland, Oregon, and they’ve got a sense of humor and a take.  (Besides the band’s name, the title of one of its albums–“The Yellow Album”–is tied to Asian stereotypes and very intentionally so.)  And, this term, the federal government body that I’m guessing would be labeled “least likely to dance” will hear from the Slants in a trademark suit.  Yes, the Slants are going to court:  the Unites States Supreme Court.

That’s because the U.S. Patent & Trademark office is appealing a judgment from the D.C. Circuit that found a prohibition on the registration of marks that “may disparage . . . persons, living or dead, institutions, beliefs or national symbols” violated the First Amendment.  The mark to which the patent office denied protection is the Slants’ name–a satirical reference to “slant-eyes” as a disparaging term for Asians.  The patent office argues that such references, apparently, even when wielded by the group that is labeled with them, cannot be protected under federal intellectual property law.  (Make sure nobody tells them what the “N” in “N.W.A.” stands for.)

The funny thing is that, even as the patent office has fought the registration of their name for years, other parts of the executive branch love the Slants. The Department of Defense sent them abroad to entertain troops in Bosnia and Kosovo, and producer Sammy Chand, assembling a compilation of Asian American artists at the behest of the White House, itself, included the Slants on his playlist.

But here’s where the story takes a sad turn.  (Doesn’t it seem like they all do, these days?)  If the Slants win–and seriously, go back and read that WaPo article and listen to some of their tunes and tell me you don’t want them to (you won’t be able to do it)–then someone else wins:  Dan Snyder.  Yes, that Dan Snyder, the petulant man-child who is the owner of the Washington Redskins.  About two and a half years ago, the patent office denied protection to the Redskins’ trademark for the exact same reason it is now denying protection to the Slants.

It’s one of the downsides of the First Amendment that it doesn’t do irony well.  Where the Slants’ use of Asian stereotypes is drenched in irony–particularly since the band comes from what is known as “America’s Whitest City”–the Redskins’ use of a similar term has no such redeeming qualities, other than longevity of use.  (Hint:  that’s not really a virtue.)  Where “the Slants” is ironically self-aware, “the Redskins” is offensively a relic.  Snyder has repeatedly stated that the Redskins will never change the team’s name despite many calls to do so.  And if the Slants win, there’s a good chance Snyder wins, too, and no one can legally say his team’s name is not entitled to the same trademark protection.

But that is where the law ends and the great American public comes in.  Because there are two forces at work in many disputes of this sort–law and money.  Courts speak to the law, and people speak to money.  Just because the law allows Snyder to peddle his product does not mean the people have to buy it.  The NFL–an organization already subject to a hail of bad publicity over concussions, assaults, and general bad behavior (not to mention, lousy games)–is very sensitive.  Shaming a business into being nice is a job for its customers, not the courts.

If SCOTUS recognizes the ironic slant (yes, I meant to do that) of the Slants’ name, it should recognize that it is more than a slur.  More free speech is pretty much always preferable to less.  And if that means that Dan Snyder’s comeuppance is dealt by the marketplace and not by the law, that’s a fair trade.  Free speech sometimes means tolerating the intolerable.   But it never means having to pay for it.