Data-Driven Constitutional Avoidance

• Author: Gregory P. Magarian, Lee Epstein, James L. Gibson
• Position: Professor of Law at Washington University in St. Louis/Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis/Sidney W. Souers Professor of Government at Washington University in St. Louis
• Pages: 1421-1453

1421

Data-Driven Constitutional Avoidance

Gregory P. Magarian, Lee Epstein & James L. Gibson*

ABSTRACT: This Article uses a case study to explain how empirical analysis

can promote judicial modesty. In Matal v. Tam, the U.S. Supreme Court

invoked the First Amendment to strike down the Lanham Act’s bar on federal

registration of “disparaging” trademarks. The Tam decision has great

constitutional significance. It expands First Amendment coverage into a new

field of economic regulation, and it deepens the constitutional prohibition on

viewpoint-based speech regulations. This Article contends that empirical

analysis could have given the Court a narrower basis for the Tam result, one

that would have avoided the fraught First Amendment issues the Court decided.

The Tam challenge came from an Asian-American rock band that calls itself

“The Slants”—as a means to reappropriate an anti-Asian slur. The authors

performed an original empirical study of how Americans understand the term

“slants.” The data show that both Asian-Americans and non-Asian-Americans

understand the term variably based on its context. Both groups recognize the

term’s derogatory meaning, but they also understand the use of the term by an

Asian-American band as an effort to reappropriate the derogatory term. This

contextual variation in how Americans understand the term “slants” exposes

the incoherence of the Lanham Act’s flat treatment of certain terms as uniformly

“disparaging.” That incoherence supports the legal conclusion that the

disparagement bar is unconstitutionally vague. A finding of vagueness in

Tam would have achieved relative constitutional avoidance, invalidating the

disparagement bar on a narrower, less constitutionally significant ground than

the actual decision’s First Amendment analysis. Constitutional avoidance

serves judicial modesty values that courts and our broader legal culture tend to

portray favorably. This Article’s study and analysis provide a model for other

situations in which empirical data can give courts a path to constitutional

avoidance.

*

Gregory P. Magarian is Professor of Law at Washington University in St. Louis; Lee Epstein is

the Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis; and

James L. Gibson is the Sidney W. Souers Professor of Government at Washington University in St. Louis.

He is also a fellow at the Centre for Comparative and International Politics and Professor Extraordinary

in Political Science at (South Africa). We are deeply indebted to Steven S. Smith, Director of the

Weidenbaum Center at Washington University in St. Louis, for his support of this research, both for

allowing us to put our “Slants” module on The American Panel Survey and for funding an oversample

of people of Asian ancestry. We also appreciate the research assistance of Dan Sicorsky.

1422 IOWA LAW REVIEW [Vol. 104:1421

I.INTRODUCTION ........................................................................... 1422

II.THE FIRST AMENDMENT PRECIPICE OF MATAL V. TAM ................ 1424

A.THE CONSTITUTIONAL STAKES .............................................. 1425

1.Covering “Uncovered Speech” in the

Economic Realm ......................................................... 1425

2.Content and Viewpoint Discrimination .................... 1428

B.THE SUPREME COURT’S TAM DECISION .................................. 1432

III.THE EMPIRICAL COMPLEXITY OF A “DISPARAGING” TERM .......... 1436

IV.EMPIRICAL ANALYSIS AS A MEANS TO CONSTITUTIONAL

AVOIDANCE ................................................................................. 1440

A.INCOHERENCE, VAGUENESS, AND AVOIDANCE IN TAM .............. 1440

1.Incoherence as Vagueness .......................................... 1441

2.Vagueness as Avoidance .............................................. 1445

B.PROPAGATING DATA-DRIVEN AVOIDANCE ............................... 1447

V.CONCLUSION .............................................................................. 1452

APPENDIX .................................................................................... 1453

I. INTRODUCTION

Epitomizing Oliver Wendell Holmes’s truism “[g]reat cases like hard

cases make bad law”1 is the U.S. Supreme Court’s decision in Matal v. Tam.2

Tam isn’t “great” because it involves especially momentous questions of public

policy. To the contrary: It centers on the quest of an obscure Asian-American

rock band to secure trademark protection for its name, “The Slants.” Rather,

Tam is a great case because, to quote Holmes, it “appeals to the feelings and

distorts the judgment.”3 The government refused to trademark the band’s

name on the theory that the term “slants” was insulting to Asian Americans

and therefore would violate a federal statutory bar on the registration of

“disparaging” trademarks (the “disparagement bar”).4 The government

ignored the band’s rationale for wanting the trademark: not to disparage

Asian Americans for their “slanted” eyes but to transform the slur into a badge

of pride—just as some gays, feminists, and blacks have attempted to

1. N. Sec. Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting).

2. See gener ally Matal v. Tam, 137 S. Ct. 1744 (2017) (holding that the disparagement

clause of the Lanham Act violated the Free Speech Clause of the First Amend ment).

3. N. Sec. Co., 193 U.S. at 400–01.

4. See infra notes 10–11 and accompanying text.

2019] DATA-DRIVEN CONSTITUTIONAL AVOIDANCE 1423

reappropriate5 derogatory labels (such as “queer,” “bitch,” and even the N-

word).6

If Tam is a “great case,” it also made “bad law.” In striking down the

federal ban on disparaging trademarks, the Court invoked the most powerful

taboo in First Amendment speech law: the nearly absolute rule against

restricting speech because of its viewpoint.7 Taking t his step h ad the dual and

unnecessary effects of expanding the First Amendment’s scope to invalidate

a long-standing federal economic regulation and of broadening, by

elaboration, the rule against viewpoint-based discrimination.

We say “unnecessary” in the face of empirical evidence we developed in

an experiment focused on the Tam case. From the data, we learned that

Americans (Asians and non-Asians alike) construe the term “Slants”

differently depending on the context: They are more likely to believe a band’s

reappropriation motives when the band is Asian than when the band is not

Asian. Put another way, had The Slants been a white band, Americans would

have concluded that the band was out to disparage Asians, but Americans can

recognize when an Asian band deploys “Slants” to help Asians.

The natural conclusion from these data is that the bar on disparaging

trademarks simply lacked internal coherence. Had the Justices understood

this, they would have seen an alternative, less constitutionally momentous

ground for striking down the bar: vagueness. For two reasons, such a holding

would have transformed Tam from a “great case” exemplifying judicial

overreaching into a great decision promoting judicial modesty. First,

declaring the disparagement bar unconstitutionally vague would not have

pushed the boundaries of substantive First Amendment law into an uncharted

area of economic regulation. Second, grounding the decision in vagueness

would have eliminated the need to elaborate on the difficult concept of

viewpoint discrimination. A vagueness holding in Tam would have

exemplified constitutional avoidance: minimizing a decision’s constitutional

impact rather than making important new constitutional law.

These conclusions pertain to Tam, but the lessons of our study are larger.

Constitutional avoidance axiomatically serves to promote judicial modesty.

Conversely, courts’ forays into factual analysis often register as judicial

overreaching. Our Tam study complicates that dichotomy by showing how

5. By “reappropriate,” we refer to “the process of taking possession of a slur previously used

exclusively by dominant groups to reinforce a stigmatized group’s lesser status.” Adam D. Galinsky

et al., The Reappropriation of Stigmatizing Labels: The Reciprocal Relationship Between Power and S elf-

Labeling, 24 PSYCHOL. SCI. 2020, 2020 (2013).

6. See generally RANDALL KEN NEDY, NIGGER: THE STRANGE CAREER OF A TROUBLESOME WORD

(2002) (explaining the history of the N-word); Galinsky et al., supra note 5, at 2020 (noting that

study shows “self-labeling with a derogatory label can weaken the label’s stigmatizing force”);

Todd Anten, Note, Self-Disparaging Trademarks and Social Change: Factoring the Reappropriation of

Slurs into Section 2(A) of the Lanham Act, 106 COLUM. L. REV. 388 (2006) (analyzing trademarks

that include reappropriated racial slurs).

7. See infra notes 42–57 and accompanying text.