Free Speech for Real

Sometimes, I wonder if free speech is even a thing any more.  It seems that students on college campuses no longer protest because their right to free speech is being infringed upon; rather they are upset when people are allowed to speak their minds freely.  They are actually asking “the man” to intervene and regulate speech. What’s up with that?

A recent story of a court battle in the trademark arena has given me hope, though.  The courts ruled that the Asian rock group, the Slants, cannot be required to change their name because it might offend someone.  NPR reports:

An Asian-American rock-band with an eyebrow-raising name has scored a big victory in the Court of Appeals for the Federal Circuit.

The court ruled that their name — The Slants — is private speech and therefore protected by the First Amendment. The government, the court writes, has no business trying to regulate it.

At issue in the case was Section 2(a) of the Lanham Act, which allows the U.S. Patent and Trademark Office (PTO) to deny or cancel a trademark if it is “disparaging” of persons, institutions or national symbols.

In a 10-2 decision, the court decided parts of that section were unconstitutional. Conferring a trademark, the court argues, does not make the band’s name government speech.

We’ve all read the stories about sports teams whose names are offensive to this group or that.  And, while I understand being sympathetic to the ethnicities that might be offended, the government should not be regulating the names of entities or business trademarks because it might offend someone.  In this case, the group itself is the ethnicity, and they have a right because of the First Amendment to call themselves what they like.  As a matter of fact, NPR reports that the Washington Redskins has a case under review in the 4th Circuit Court of Appeals regarding its trademark right now.

While agreeing with someone from the ACLU is painful, this statement from Lee Rowland, an attorney with the American Civil Liberties Union, who argued before the court in October, sums up the reason this is a satisfying First Amendment victory:

“Our First Amendment prevents the government from giving rights and benefits only to people engaged in the ‘right kind’ of speech, and that principle holds just as true in the trademark system,” she said in a statement. “It should be up to the public, not the government, to drive bad ideas from the marketplace.”