Can the government police speech it thinks is offensive? The Lanham Act allows the government to deny trademark registration to "disparaging" speech. What does the First Amendment have to say about the government's ability to pick and choose among speech it doesn't like? Two pending appeals court cases will directly address this important question.
The U.S. Court of Appeals for the Fourth Circuit is scheduled to hear oral argument in Pro-Football, Inc. v. Blackhorse, a case challenging the REDSKINS trademark and, by extension, the constitutionality of § 2(a).
Meanwhile, in In re Tam, an Asian-American rock band called “The Slants” was denied trademark registration after the Patent and Trademark Office found the trademark disparaging to Asians. A panel of the U.S. Court of Appeals for the Federal Circuit affirmed the decision. But the en banc Federal Circuit—without being asked—decided to vacate that decision and consider whether § 2(a) violates the First Amendment.
Are we headed for a constitutional showdown over § 2(a) of the Lanham Act? Will the two appellate courts reach opposite decisions and invite Supreme Court review?
- Dwayne D. Sam, Associate, Wiley Rein LLP
- Ilya Shapiro, Senior Fellow in Constitutional Studies and Editor-In-Chief for Cato Supreme Court Review, Cato Institute