It Appears the Washington Redskins’ efforts to protect their trademarks got a huge boost. The Supreme Court on Monday ruled unanimously that the government may not refuse to register potentially offensive names. The law denying protection to disparaging trademarks, the court said, violated the First Amendment.
Lisa S. Blatt, a lawyer for the Redskins, said the decision “resolves the Redskins’ longstanding dispute with the government.”
“The Supreme Court vindicated the team’s position that the First Amendment blocks the government from denying or canceling a trademark registration based on the government’s opinion,” she said.
The decision, in a case brought by an Asian-American dance-rock band called the Slants, was viewed as a strong indication that many embattled organizations will win their fights to retain federal trademark protection.
The law at issue in these cases denies federal trademark protection to messages that may disparage people, living or dead, along with “institutions, beliefs or national symbols.”
Four Justices said the law could not withstand even the fairly relaxed judicial scrutiny that the Supreme Court applies to commercial speech. Those justices rejected the two government interests that the law was said to advance: protecting disadvantaged groups from demeaning messages and the orderly flow of commerce.
Justice Samuel A. Alito Jr. wrote for this group of four justices. “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,’ ” he wrote, quoting a classic 1929 dissent from Justice Oliver Wendell Holmes. Remember the First Amendment also protects offensive speech.
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Stephen G. Breyer Justice Alito’s opinion when he added that the law’s disparagement clause was far too broad. “It is not an anti-discrimination clause; it is a happy-talk clause,” he wrote.
Justice Neil M. Gorsuch did not participate in the case, since it was argued in January, before he joined the court.
The remaining four justices would have struck down the law using the far reaching First Amendment scrutiny that applies to viewpoint discrimination.
Justice Anthony M. Kennedy wrote, the danger of viewpoint discrimination, is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing.”
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Kennedy’s opinion.
Further he wrote, “To permit viewpoint discrimination in this context is to permit Government censorship,”