Imagine that a group of musicians called themselves The N-Words. The uproar would be loud and swift, but should government deny them the right to use that name? As abhorrent as we might find that name, the answer is no. Government should be neutral on art, not judge it.
Censorship should not be wielded as a tool to suppress creativity in the marketplace , but it has been at the U.S. Patent and Trademark Office (PTO) until earlier this summer.
The Slants, an Asian-American band which adopted the slur against Asian people in hopes of turning it into something “beautiful or a point of pride,” were denied when they applied for a trademark by the PTO to protect their band's name. Trademarks, a type of intellectual property, prevent other businesses from using similar marks or names that could cause confusion. They also allow the PTO to police against copycats and bring legal action against those who infringe.
The Slants’s application was denied on the grounds that the name violated the “disparagement clause” of federal trademark law. This clause prohibits the government from granting trademarks that insult any group of people. The Slants successfully appealed their case in various courts, but the PTO held firm and took the case to the Supreme Court, where The Slants won on free speech grounds (Matal v. Tam).
The Supreme Court unanimously struck down the disparagement clause as unconstitutional. Justice Samuel Alito Jr., who wrote the opinion, affirmed a “bedrock” principle of the First Amendment: speech cannot be banned because it offends. Alito noted, “We have said time and again that 'the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.'”
Government does not have license to shut down art that offends or messages they disapprove of – even those that others might find offensive, distasteful, and hurtful. The proper role of government is to provide and protect intellectual property rights — no more.
This case came at a critical moment. From college campuses to the entertainment industry, speech police are trying to ban any speech that offends their sensibilities. The Supreme Court has affirmed that every American has a right to express his or her thoughts – even if they offend others. The First Amendment precisely protects minority and dissenting views such as using a slur as the name of a band.
Artists and creators face costly challenges and pressures today, and censorship should not be one. They are up against counterfeit products produced overseas and sold in the U.S., unauthorized sharing of content online, and abuse of the patent system to extort settlements to name a few. The U.S. economy loses $225 to $600 billion in counterfeit goods, pirated software, and the theft of trade secrets annually. We lose another $60 billion per year from online piracy of digital content such as music, film, and books.
With the Supreme Court’s invalidation of the disparagement clause, there may be calls for replacement legislation that would pass constitutional muster. Congress must fervently reject efforts to limit the rights of American artists and creators – no matter how “good” their intentions might be. Their energy would be better spent advancing policy reforms that address the challenges of our intellectual property system such as modernizing the Copyright Office, reforming the patent system to discourage companies from abusing the justice system, and updating federal law to strengthen copyright protections.
Let’s allow the PTO to focus on being neutral gatekeepers of IP law and allow creative people to have their products protected without the finger-wagging of government.