Tuesday, June 20, 2017

Supreme Court Rules Overwhelmingly To Strike Down 'Disparagement Clause' Used To Bar Offensive Trademarks

By Jonathan Turley - June 20, 2017 at 02:51PM

undefined

The U.S. Supreme Court handed down a major victory for free speech on Monday in striking down a provision of the Lanham Act that barred registration for “disparaging” trademarks.  The decision came in Matal v. Tam, a case that we have been following. I have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name. As predicted, the ruling answered  the question raised in the prior column in controversies like the denying of trademark protection to the Washington Redskins.  The decision is good news for Washington’s NFL team, which lost its trademark because its name is disparaging to Native Americans.

Tam is the “front man” for the Asian-American rock band The Slants and, in 2010, filed an application seeking to register the mark THE SLANTS.  Tam’s group called itself the Slants because it wanted to “reclaim” and “take ownership” of stereotypes about Asians.

The Lanham Act provision, known as the “disparagement clause,” bans the registration of a trademark that may disparage “persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  I have been highly critical of the provision for years in both columns and testimony before Congress.  Now it is gone but I remain perplexed how Congress failed to act on the matter to protect free speech for so many years.  One obvious reason is that many legislators lined up praising the denial of trademarks as entirely proper.

House Minority Leader Nancy Pelosi celebrated the denial of the trademark, which clearly contravened free speech protections.  Sen. Harry Reid not only praised the action but predicted that the Redskins name would be gone within three years. That was in 2014.  Democratic Senator Maria Cantwell said, “We’re so excited to know that finally people are recognizing that this issue can no longer be a business case for the NFL to use this patent.”

Fortunately, the Supreme Court has shown the faith and fealty for free speech that is so conspicuously absent in Congress.  Justice Samuel Alito wrote. “It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue. It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.”   Alito added: “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,” Alito added. “If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”

That was a view shared by eight out of nine justices — showing just how far these members and commentators were outside of the lines for free speech.  The Redskins should now be in a good position to dismiss the earlier ruling on its trademark. The matter will remain where it should have been left: to the court of public opinion.

The seven other members of the court agreed that the provision amounted to viewpoint discrimination, though four of the justices wrote separately to state that the holding made it unnecessary to give extended treatment to other questions raised by the parties.

In the separate opinion, Justice Anthony M. Kennedy said the registration had been denied not because the Slants intended to demean or offend, but because the government thought the trademark would have that effect on some Asian-Americans.

“The government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker’s audience,” Kennedy wrote.

All eight justices agreed that trademarks are not government speech, which would have required a different analysis.

Here is the opinion: Matal v. Tam

Reprinted with permission from JonathanTurley.org.

from Ron Paul Institute Featured Articles

via IFTTT

No comments:

Post a Comment

Merchandise



See other gifts available on Zazzle.

Ron Paul America Cloud

Site Credits

Ron Paul America

is voluntarily affiliated with

Liberty Operations Group

______________________________

Site created, maintained and hosted by

Liberty Web Services

Tags

#TurnOnTheTruth 2008 2012 4th amendment 911 ACTION Afghanistan war Agency Aggression Principle al-Qaeda Alan Colmes Alert America America's Fault Americans antigun AR 15 assault weapon Audit Authoritarian bailouts Believe Big Brother big government bill of rights Blame blowback bubbles Bush Campaign for Liberty Career Politician Eric Cantor Central Bank Charity China churches collapse Collectivism Commission committee Compassion Congress Conservative constitution Crash dangerous person Democrat Democrats Donald Trump Donald Trump. Planned Parenthood drones economic Economy Edward Snowden End the Fed European Union Federal Reserve Floyd Bayne floyd bayne for congress force foreign interventionism free market free markets GOP Nominee GOP Presidential Debates Government Great Depression gun control House of Representatives housing bubble HR 1745 I like Ron Paul except on foreign policy If ye love wealth better than liberty IFTTT Individual Individualism Institute Irag Iran Iraq war ISIL ISIS Judge Andrew Napalitano libertarian Liberty Liberty Letters Liberty Report Lost mass Media meltdown metadata Micheal Moore Middle East Mitt Romney nap National Neocons New Ron Paul Ad New York Times Newsletters Newt Gingrich No Non non-interventionism NSA NSA Snooping Obama Overreach overthrow Patriot Act peace politicians Pope Francis President Presidential Presidential Race programs prosperity Race Racist Racist Newsletters Rand Paul Read the Bills Act recessions redistribution of wealth refugee crisis Repeal Obamacare Report Republican Republican Nomination Republican Nominee Republicans Revolution Rick Santorum Rick Santorum Exposed Ron Ron Paul Ron Paul Institute Ron Paul Institute Featured Articles Ron Paul Institute for Peace And Prosperity Ron Paul Institute Peace and Prosperity Articles Ron Paul Next Chapter Media Channel Ron Paul Racist Newsletters ron paul's foreign policy Ronald Reagan ronpaulchannel.com ronpaulinstitute.org Rosa DeLauro russia Samuel Adams Saudi Arabia Second Amendment Security Senate Senator September 11th attacks Show Soviet Spying stimulate Stock Market surveillance Syria tech bubble terrorist The the Fed the poor US US foreign policy Us troops USA Freedom Act Virginia Virginia Republican Primary voluntarism. Liberty Voluntary Warner Warning warrantless wiretaps YouTube