In two thousand and six, a rock band comprised entirely of Asian America's named itself the Slants, with the idea that it would reappropriate a term that has been used to denigrade Asian Americans. Five years later, the leader of the band so had to register their name as a trademark with the federal government, but the U. S. Patent and Trademark Office said no, because federal law prohibits registration
of a trademark that disparages people. The leader that leader of the band, Simon Tam, then sued the government on the ground that the denial violated his First Amendment right to free speech. And today the Supreme Court heard arguments in TAM's case. Here to talk with it, about it, with us about it is our Bloomberg Law co host Greg Store, who's also Bloomberg Supreme Court reporter. Greg was in the courtroom today and we're gonna be talking to
him about the argument. But first, Greg, why don't we talk about a decision the Supreme Court issued uh today and then we'll get to the trademarketing that they had a decision about Fannie made, didn't they? They did? And I'd love to tell you it's the most closely watched case of the term, Michael, but that's not not the case,
but it's still important for Fanning May. Essentially the question is whether Fanning May was was sued and tried to move um a lawsuit into federal courts and often, uh, you know, big corporate defendants like to be in in federal court. They think they stand a better chance of winning. And the Supreme Court unanimously said that there's a provision in federal law that that that Fanning May thought gave
federal courts jurisdiction over any case involving Fanning May. And the Supreme Court unanimously said, no, that's not the case. An opinion by justice so do mayor so a setback for Fanning May, But really just about where Fanning May have to have to uh can be in court, not not whether they can be sued. So, Greg, now let's go to one of the more closely watched cases and one of the more interesting ones from my point of view, and that is the case about disparaging trademarks. There were
oral arguments today. You were there, what was the main you for the justices? Yeah, it is a really interesting case. Student federal trademark law does and has for for seventy years or so, say that trademark examiners can refuse to uh register a trademark and we can talk later about what what that involves, but that's it's a benefit for a trademark owner, uh if the name is disparaging of
of somebody else or some other thing. And in the case of this group, the Slants trademark examiners concluded it was disparaging, even though as as Michael describe, that's not what the members of the band say they're they're trying to do. And so the question is whether that sort of distinction is constitutionally appropriate for the government to do in the general sense. In the courtroom are the big question was whether that was impermissible viewpoint discrimination by the
federal government. Well, on first blush, you know, it does seem like g they're just expressing something here, they're trying to reclaim something. It's very political. You think it's the heart of the free speech clause of the First Amendment. On the other hand, what did the government argue, Well, the government's argument is that they can still say it. Nobody is questioning their ability to call themselves this land, and in fact they can sue UH for trademark infringement
for example under state common law. The question that the government says is whether we're going to give them this added benefit. This is a registry and basically you can if you're thinking about, you know, naming your own rock band, you can go to this registry and see see you know, what names are already taken and make sure you're not infringing on anything. Um And it also, um you know, give some legal benefits, some presumptions when you're in court
if you're the owner of a registered trademark. And so the government says the fact that we're prohibiting anybody from saying anything, We're just deciding where that we're going to confer a benefit, and when we do that, we have a lot more discretion. Loo Greg. It seems as if there is too too much discretion. I mean, there are bands who have been recognized trademarks for example and w A Uncle Cracker. Those are those are bands that do
have trademarks. And so isn't it viewpoint discrimination? Yeah? That that that is certainly one of the arguments and another way of thinking about it. I'll though this didn't come up as much as I might have thought it would have. Is that this provision in the law just talks about disparaging um, and it doesn't really define what what exactly that is. And so you do have these results that
seem like they are they are inconsistent with one another. Uh. And that was the general sets in the courtroom that there was um that there was real concern that the government uh did have the ability to say this name is okay, this name is not okay. But the justice did have some concerns about how to draw lines here, didn't they They did, it wasn't and they didn't get
a whole lot of help from Mr TAM's lawyer on that. Um. You know, one question that came up in't ever really got answered was or well, how does it you know, could the government, you say, a local government have a Shakespeare festival where what we're gonna do is we're gonna, you know, talk about how great Shakespeare was and um, uh you know, isn't that a form of viewpoint discrimination?
But in a very limited context. And and so what they seemed to be really searching for was to try to figure out how we could say that trademark is different from all these other contexts where um, the government might uh legitimately be able to say, in this particular context, we're we're only um talking about certain things. Right. How did the Federal Circuit, which handles these cases, handle this below, Well, the Federal Circuit decided with with the band the band um.
Mr Tam and said that this was a violation of the First Amendment, which which essentially made of a guarantee that the Supreme Court would would take up the issue. Um, there is another case I should point out that that involves the Washington Redskins that may or make them out the same way or may not come out the same way. Well, you know, TAM's lawyer argued, if I understood his argument correctly, that there is a way to for the court to
decide this without getting to the constitutional question. That is, they could just sort of decided on statutory grounds. Is there a way for them to do that if they find they can draw a lines, well, could they could decide that this is just not disparaging um. But but that that did not really come up. In fact, I don't think it came up at all in the argument it um. Uh, you know, would involve them making the kind of fact based judgment called that the Supreme Court
doesn't really like to make it. Would you know, it might be a way of of uh, you know, getting out of the cases they decided they don't want to decide very much. But this is this is a court that likes First Amendment cases, likes First Amendment issues. They weren't, you know, being shy about grappling with these big questions. They just, uh, we're struggling a little bit to figure out where to draw the line. Greg, thank you very much.
That's Greg Store, Bloomberg Supreme Court reporter and our esteemed co host here on Bloomberg Law talking about an argument today in on a First Amendment case in a trademark case in the Supreme Court