Justices Strike Down Law Banning Disparaging Trademarks

The court’s decision probably means that the Washington Redskins football team will win its fight to retain federal trademark protection. (Nick Wass/Associated Press)

In a decision likely to bolster the Washington Redskins’ efforts to protect its trademarks, the Supreme Court on Monday ruled that the government may not refuse to register potentially offensive names. A law denying protection to disparaging trademarks, the court said, violated the First Amendment.

The decision was unanimous, but the justices were divided on the reasoning.

The decision, concerning an Asian-American dance-rock band called the Slants, probably also means that the Washington Redskins football team will win its fight to retain federal trademark protection.

The law at issue in both cases denies federal trademark protection to messages that may disparage people, living or dead, along with “institutions, beliefs or national symbols.”

In 2015, a federal appeals court in Washington found the law’s disparagement provision unconstitutional in a case brought by the Slants. Writing for the majority in a 9-to-3 decision, Judge Kimberly A. Moore of the United States Court of Appeals for the Federal Circuit said that while some of the rejected trademarks “convey hurtful speech that harms members of oft-stigmatized communities,” the First Amendment “protects even hurtful speech.”

Supreme Court decisions in recent years have protected offensive speech, including hateful protests at military funerals, depictions of animal cruelty and lies about military honors. More generally, the court said in 2015 in Reed v. Town of Gilbert that laws “that target speech based on its communicative content” were “presumptively unconstitutional.”

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SOURCE: The New York Times
Adam Liptak