The U. S. Supreme Court ruled on Monday that it’s unconstitutional for the federal government to reject trademarks because they use offensive terms…
The U. S. Supreme Court ruled on Monday that it’s unconstitutional for the federal government to reject trademarks because they use offensive terms like racial slurs.
Two years ago, however, the court determined that Texas was free to turn down a specialty license plate design featuring the Confederate battle flag.
What gives?
Both decisions invoke the First Amendment’s free-speech clause, but in different ways. The court concluded in the most recent case that an Oregon rock band’s trademark application involved private speech that cannot be restricted by the government based on content. But in the Texas case, a majority of the court concluded that a license plate design is government speech deprived of First Amendment protection.
The Texas decision echoed throughout the Oregon case, even though the Supreme Court ultimately dismissed comparisons between the two.
Here’s a rundown of both cases and the distinctions made by the court: Walker v. Texas Division, Sons of Confederate Veterans
Texas offers drivers several kinds of license plates. There are the general-issue ones that say « The Lone Star State, » the personalized kind that allow drivers to choose a certain string of letters and numbers, and a third « specialty plate » program that features dozens of messages and designs.
Some of these specialty plates showcase universities, sports teams, nonprofits and their social causes.
In 2011, the Texas Department of Motor Vehicles Board rejected a proposed design by the nonprofit Sons of Confederate Veterans that featured a square Confederate battle flag as part of the group’s logo. The flag also appeared in the background of the license plate.
The state explained that there had been backlash from the public and elected officials. It added that « a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups. »
The Sons of Confederate Veterans sued, and an appeals court sided with them. But the Supreme Court reversed that ruling to favor the Texas DMV.
A majority of the court — including Clarence Thomas, a conservative and the court’s only black justice — decided that the specialty plates are government speech, even if the design originated with a private group.
The court based its conclusion on several points: Texas has final authority over the messages, assumes ownership of the specialty plate designs and has traditionally used the plates for government speech. For example, it marked a 1995 milestone with the message « 150 years of statehood » on license plates.
« Texas license plates are, essentially, government IDs, » Justice Stephen Breyer wrote. « And issuers of ID ‘typically do not permit’ the placement on their IDs of ‘message [s] with which they do not wish to be associated.' »
In a dissenting opinion, Justice Samuel Alito Jr. ridiculed the majority’s reasoning.
« As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? » he wrote. « If a car with a plate that says ‘Rather Be Golfing’ passed by at 8: 30 am on a Monday morning, would you think: ‘This is the official policy of the State–better to golf than to work?' »
The court handed down its ruling in June 2015 as people across the U. S. debated the racist legacy of the Confederate flag and its display in public spaces. That summer, South Carolina lawmakers moved to bring down the battle flag from their statehouse after a white supremacist murdered nine black parishioners at a Charleston church. Matal v. Tam
Asian-American musician Simon Tam founded a rock band in 2006 and chose a racial slur for a name — The Slants.
He saw it as an act of « reappropriation. »
« We want to take on these stereotypes that people have about us, like the slanted eyes, and own them, » he said in a court filing.
When Tam applied for a trademark, he explained to the U. S. Patent and Trademark Office, or PTO, that it wasn’t his intent to offend. But officials blocked his application and pointed to a provision in a federal law called the Lanham Act that bars the registration of trademarks « which may disparage… persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. »
The examining attorney who rejected Tam’s request cited a performance that was canceled because of the band’s name and posts by bloggers and other people online who said they found the term offensive.
After an appeals court sided with Tam, the dispute rose to the Supreme Court. The trademark office relied heavily on the ruling that Texas license plates constitute government speech.
The court unanimously quashed arguments linking both cases.
« It is thus far-fetched to suggest that the content of a registered trademark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently, » Alito wrote.
And the idea that the government should prevent speech that offends « strikes at the heart of the First Amendment, » he wrote.
This is good news for the Washington Redskins, whose name has come under fire because it’s considered offensive to Native Americans. Federal officials canceled the football team’s trademark, and an appeals court put the case on hold to wait for a decision on The Slants. When is it government speech?
When Alito struck down efforts to equate the Oregon case with the one in Texas, he highlighted three points:
First, license plates have long been used by states to convey messages. Second, license plates are usually identified with the state because they are considered a form of government ID, one that is manufactured by the state and generally designed by the state.
