SIMON TAM DIDN'T think it would be a big deal when he applied for trademark protection on the name of his band, The Slants. It was 2011, and the band--a dance-rock group whose members are all Asian-American--had been getting some buzz. A lawyer buddy told Tam he'd do the application, saying the process would take a couple hundred bucks and six months, tops.
"Things turned out a little bit different," Tam told Reason several years later, on the eve of Supreme Court oral arguments over his trademark case.
Since 1946, the federal Patent and Trademark Office (PTO) has been charged with blocking the registration of trademarks that "may disparage... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." It was on those grounds that the agency denied Tam his trademark.
The San Diego-born musician, whose father was raised in the Hong Kong area and whose mother is from Taiwan, says the name of the band was a lighthearted (and hardly unprecedented) effort to reclaim an old anti-Asian slur. Their discography includes Slants! Slants! Revolution (2009), The Yellow Album (2012), and their latest, an E.P. titled The Band Who Must Not Be Named.
Since that initial PTO denial, the case has slowly, painfully worked its way through the legal system. Early on, an administrative review board conceded that the band's name was "an attempt not to disparage, but rather to wrest 'ownership' of the term from those who might use it with the intent to disparage," but rejected the claim anyway, finding that the usage was still "objectionable."
In 2015, a federal appeals court sided with Tam, noting that "the First Amendment protects even hurtful speech." As the majority explained, "whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find speech likely to offend others." The PTO defended its decision by saying that Tam's speech wasn't being restricted--he can call the band whatever he likes, he simply can't have a trademark on that name. The PTO also argued trademarks are akin to government speech. But as noted in a brief filed on the band's behalf by the Cato Institute, Reason Foundation (the nonprofit that publishes this magazine), and others, that argument was pretty weak, considering that the list of currently registered trademarks "includes such hallowed brands as 'Capitalism Sucks Donkey Balls' and 'Take Yo Panties Off.'"
In January, shortly after Tam sat down with Reason TV's Meredith Bragg, the Supreme Court heard The Slants' case, now known as Lee v. Tam. The justices appeared skeptical of the government's argument, pushing back on the law's vagueness, its circular reasoning, and its uneven application, suggesting that the Court might overturn the 71-year-old rule standing between The Slants and their trademark.
Reason: Why did you form the band and how did you come up with the name?
Tam: Back in about 20041 had just moved to Portland, Oregon, and I dropped out of college to tour in a punk rock band. But during that time period I found myself missing home, my culture, my family and friends, and so I started importing a bunch of movies from Hong Kong. Around that time period someone said, "Hey, you should...