Marks and censor: Free expression v offensive speech at the Supreme Court

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AMERICA protects the freedom of expression about as robustly as anybody. The courts that police this First-Amendment guarantee, though, often face dilemmas. On January 18th, in Lee v Tam, the justices considered a case involving “the first and only all-Asian American dance rock band in the world” and its quest dating back to 2011 to trademark its name, “The Slants”, an appropriation of an anti-Asian epithet. The United States Patent and Trademark Office (PTO) told the band that a half-century-old law called the Lanham Act prohibited “scandalous, immoral or disparaging” trademarks. Then, citing a definition of “slants” from Urbandictionary.com, a list of ethnic slurs from Wikipedia and a slew of other evidence, the PTO denied The Slants’ application.The Portland-based quartet fought the decision and won a judgment in 2015 from the United States Court of Appeals for the Federal Circuit, a Washington, DC based court with jurisdiction over patent disputes. The ruling struck down the provision of the Lanham Act in question as a clear violation of the First Amendment: “The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks”, the judges wrote. The constitution “protects even hurtful speech”. The government then …

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