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Oregon band wins Supreme Court trademark case

June 29, 2017

Wall Street Journal Editorial,

The Supreme Court has done some of its best work in recent years on the First Amendment, and that continued with an 8-0 decision Monday protecting unpopular speech. The Justices ruled that an Asian-American rock band called The Slants can’t be denied a federal trademark because the government fears the name might offend someone.

Simon Tam, front man for The Slants, sought to register the name with the Patent and Trademark Office as a rebuke to those who use it as a pejorative. The government denied the trademark, citing a Lanham Act provision that bans trademarks that “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols.” The Court ruled that this clause is unconstitutional (Matal v. Tam).

The idea that the government has an interest in suppressing viewpoints that offend “strikes at the heart of the First Amendment,” Justice Samuel Alito wrote. “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

The government claimed trademark registration is a form of government free speech, but that was also dismissed by Justice Alito. “If a trademark qualifies as government speech,” he wrote, the government “is babbling prodigiously and incoherently,” endorsing competing products and making contradictory statements.

The effort to “cleanse” commercial speech of any offense is also a nonstarter since there are many kinds of merchandise that “disparages prominent figures or groups and the line between commercial and non-commercial speech is not always clear.” Think anti-Trump T-shirts.

Justice Anthony Kennedy wrote a concurrence making a useful point about how government could abuse such leverage over speech. “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all,” Justice Kennedy wrote. “The First Amendment does not entrust that power to the government’s benevolence.”

In other good news, the Justices on Monday continued to police legal forum shopping. In Bristol-Myers Squibb v. Superior Court of California, the Justice ruled 8-1 that California courts don’t have jurisdiction to decide injury claims for some 592 out-of-state plaintiffs when the defendant company isn’t based there and the injuries didn’t occur there.

This is the third time this term the Justices have ruled against lawyers who file injury cases in so-called judicial hellholes known for jackpot verdicts regardless of an actual connection to the locale. Justice Alito’s majority opinion called it a “straightforward application” of “settled principles of personal jurisdiction.”

The sole dissenter was Justice Sonia Sotomayor, who frets that the decision will increase the burden on injured plaintiffs and prevent nationwide class actions, but suits with merit can always be filed in federal court.

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