[T]he viewpoint discrimination rationale renders unnecessary any extended treatment of other questions raised by the parties.
Matal v. Tam
Respondent applied for a trademark for his band "The Slants." This application was denied in accordance with the Lanham Act for being derogatory against Asian-Americans.
The en banc Federal Circuit found that the Lanham Act's disparagement clause was unconstitutional.
Is the Lanham Act's disparagement clause constitutional?
Trademarks are government speech.
Trademarks are government subsidies.
The disparagement clause's constitutionality should be tested under a new "government-program" doctrine.
Trademarks being government speech does not make sense. The government does not create them and can only reject them as provided by statute. Many trademarks are also directly contradictory, leaving the government endorsing tons of competing products. This would also imply that copyright is government speech, making the content of most books government speech. Trademarks are instead private speech.
They are also not government subsidies. The government does not pay people to file a trademark. Instead, the applicants have to pay the government a filing fee, which has sufficiently supported the office. It is not made a subsidy just because it provides a non-monetary benefit, as basically everything the government does is for the benefit of its citizens. Other beneficial activities like issuing driving licenses and registering land titles are not government subsidies and neither is this.
In cases closest to the proposed "government-program" doctrine, those with a public government forum for private speech, viewpoint discrimination is prohibited. While the disparagement clause prohibits offending all viewpoints the same, offensiveness is itself a viewpoint which government cannot discriminate against, and thus this proposal must be rejected.
For the government to restrict speech, it must serve "a substantial interest" and be "narrowly drawn." Here, there is no such interest. It is claimed that this protected oppressed groups from being barraged by demeaning messages, but this is not the government's interest. The First Amendment is intended to protect all speech, regardless of how offensive and hated it is. It is also too broad to protect the orderly flow of commerce as it applies when disparaging any person, group, or institution, even dead people or when such a disparagement would not affect commerce. Furthermore, it is simply not possible to cleanse the economy of offense speech, as merchandise itself can be disparaging and it can be hard to distinguish commercial and non-commercial speech.
The disparagement clause violates the First Amendment Free Speech Clause. Affirmed.
- Page 156
- Page 156
"I continue to believe that when the government seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny is appropriate, whether or not the speech in question may be characterized as 'commercial.'"