Members of the Portland-based rock group The Slants have been fighting for the right to trademark their band name for nearly eight years — ever since the US Patent and Trademark Organization ruled that their name was a racial slur, and thus in violation of a decades-old law, the Lanham Act, that blocks the trademarking of “scandalous, immoral or disparaging” terms.
Some musicians might have just shrugged at this point and changed their name to something innocuous (” … and here they are … from Portland, Oregon … THE PLANTS!”)
Instead, Simon Tam and his bandmates fought back, taking their quixotic battle all the way to the Supreme Court — and Monday, the highest judiciary body in the land declared the Act to be unconstitutional and struck it down.
The decision has led some so-called anti-PC crusaders to claim vindication, calling the ruling a mighty blow against those who believe that institutions have not just the right, but the responsibility to provide protections against hateful speech. They’re wrongly using a case of a specific victory to make a general — and ultimately, untenable — claim.
Yes, the Lanham Act is archaic and poorly written. The definition of “scandalous, immoral or disparaging” is subjective to the point of absurdity, and government institutions should be extremely wary of being put in the position of determining the meaning and application of any of these adjectives. What’s a “scandal” in an era where we wake up cringing at presidential tweets every morning? Whose standards should be used to define “immoral”? And especially, what constitutes “disparaging” when the user of a term is also its typical target?
This, of course, was the crux of Tam’s motivation to engage in what he calls his “excruciating” legal battle for almost a decade.
You see, Tam and his bandmates are all Asian-American. If a band consisting of non-Asians had tried to register “The Slants,” the government reviewer would likely have failed to interpret the term as offensive to begin with. After all, there are dozens of registered trademarks for items called “Slant” — including 4418371, for “Non-metal building materials”; 4123704, for “Skateboards, skateboard wheels sold both separately and together with the skateboard as a unit”; there are intraocular lenses and tweezers trademarked as “Slants” — even creative enterprises, like the Slant ad agency and “Slanted” online journals. None of them were blocked as being scandalous, immoral or disparaging.
Ultimately, understanding the meaning of any utterance requires context — who’s speaking, to whom, and with what intent. “Slant” isn’t a slur when used in conventional fashion to refer to objects that are diagonally askew from the vertical or horizontal. It is a slur when used by a non-Asian to reference Asians — even when said without explicitly hostile intent, because of the long history of harmful acts it references and invokes.
(This is true even when a non-Asian uses it while not speaking directly to an Asian person. By way of parallel, consider Bill Maher’s recent blithe, televised use of the term “n****r.” That was a slur, even though he was nominally directing the term at himself in self-deprecation, and even though he later apologized, because in using it he was invalidating the long history of harm associated with the term, when used by white men like himself toward blacks.)
The fact is, the context in which Tam and his bandmates are using Slant, as a conscious commentary on its legacy of harm, as a way of reclaiming it from that legacy, is not scandalous, nor immoral, nor disparaging. Yes, it challenges those who hear it, demanding awareness of the term’s ugly roots and history. But the band is perfectly willing to provide the resources needed to share in that awareness. It’s what they do: The band goes out of its way to play college campus and Asian-American festival gigs and is deeply involved in supporting and promoting social justice-related causes.
Blanket rejection of the dirty laundry in our history is cultural erasure. Refusal to acknowledge that it’s dirty, by claiming that all speech is the same, regardless of who’s speaking and with what intent, is tantamount to declaring open season on marginalized groups and individuals. All Tam has ever asked is for the Patent and Trademark Organization to bring a “culturally competent” approach to their decision-making, and frankly, that’s what we should ask of every government institution.
The bottom line: Freedom of expression and protection of the oppressed can coexist, if people take the example set by The Slants and do the work to defend them both.
