Free Speech

So long as the government determines what’s free to be said.

There’s this American rock band, all of whose members are of Asian heritage, who call themselves The Slants. When they tried to trademark their name, the US Patent Office refused, claiming the name is “disparaging.” The matter is now before the US Court of Appeals for the Federal Circuit, which is the appellate court that hears such cases. The Court is hearing the matter en banc, or the whole court is handling the appeal instead of the usual three-judge panel.

The government is censoring naming. At oral argument,

Judge Kimberly Moore asked what would happen if the government started rejecting copyrights for controversial art or other expressive works as it is doing with trademarks.

Would there be “no more porn? No more crucifixes in urine?”

The government is arguing, and it’s serious,

[T]he law governing trademark registrations does not violate the First Amendment…. Its purpose is not “to help people to make a political statement or prevent people from making political statement[.],

Indeed. However, the government’s lawyer, Daniel Terry, is arguing that Government is the one that will determine what is political speech that the government must protect and what is not political speech that the government gets to censor. And Terry argued with that claim that Government has determined that a name can never be political speech.

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