Speaker 1: In two thousand and six, a rock band comprised entirely
Speaker 1: of Asian America's named itself the Slants, with the idea
Speaker 1: that it would reappropriate a term that has been used
Speaker 1: to denigrade Asian Americans. Five years later, the leader of
Speaker 1: the band so had to register their name as a
Speaker 1: trademark with the federal government, but the U. S. Patent
Speaker 1: and Trademark Office said no, because federal law prohibits registration
Speaker 1: of a trademark that disparages people. The leader that leader
Speaker 1: of the band, Simon Tam, then sued the government on
Speaker 1: the ground that the denial violated his First Amendment right
Speaker 1: to free speech. And today the Supreme Court heard arguments
Speaker 1: in TAM's case. Here to talk with it, about it,
Speaker 1: with us about it is our Bloomberg Law co host
Speaker 1: Greg Store, who's also Bloomberg Supreme Court reporter. Greg was
Speaker 1: in the courtroom today and we're gonna be talking to
Speaker 1: him about the argument. But first, Greg, why don't we
Speaker 1: talk about a decision the Supreme Court issued uh today
Speaker 1: and then we'll get to the trademarketing that they had
Speaker 1: a decision about Fannie made, didn't they? They did? And
Speaker 1: I'd love to tell you it's the most closely watched
Speaker 1: case of the term, Michael, but that's not not the case,
Speaker 1: but it's still important for Fanning May. Essentially the question
Speaker 1: is whether Fanning May was was sued and tried to
Speaker 1: move um a lawsuit into federal courts and often, uh,
Speaker 1: you know, big corporate defendants like to be in in
Speaker 1: federal court. They think they stand a better chance of winning.
Speaker 1: And the Supreme Court unanimously said that there's a provision
Speaker 1: in federal law that that that Fanning May thought gave
Speaker 1: federal courts jurisdiction over any case involving Fanning May. And
Speaker 1: the Supreme Court unanimously said, no, that's not the case.
Speaker 1: An opinion by justice so do mayor so a setback
Speaker 1: for Fanning May, But really just about where Fanning May
Speaker 1: have to have to uh can be in court, not
Speaker 1: not whether they can be sued. So, Greg, now let's
Speaker 1: go to one of the more closely watched cases and
Speaker 1: one of the more interesting ones from my point of view,
Speaker 1: and that is the case about disparaging trademarks. There were
Speaker 1: oral arguments today. You were there, what was the main
Speaker 1: you for the justices? Yeah, it is a really interesting case.
Speaker 1: Student federal trademark law does and has for for seventy
Speaker 1: years or so, say that trademark examiners can refuse to
Speaker 1: uh register a trademark and we can talk later about
Speaker 1: what what that involves, but that's it's a benefit for
Speaker 1: a trademark owner, uh if the name is disparaging of
Speaker 1: of somebody else or some other thing. And in the
Speaker 1: case of this group, the Slants trademark examiners concluded it
Speaker 1: was disparaging, even though as as Michael describe, that's not
Speaker 1: what the members of the band say they're they're trying
Speaker 1: to do. And so the question is whether that sort
Speaker 1: of distinction is constitutionally appropriate for the government to do
Speaker 1: in the general sense. In the courtroom are the big
Speaker 1: question was whether that was impermissible viewpoint discrimination by the
Speaker 1: federal government. Well, on first blush, you know, it does
Speaker 1: seem like g they're just expressing something here, they're trying
Speaker 1: to reclaim something. It's very political. You think it's the
Speaker 1: heart of the free speech clause of the First Amendment.
Speaker 1: On the other hand, what did the government argue, Well,
Speaker 1: the government's argument is that they can still say it.
Speaker 1: Nobody is questioning their ability to call themselves this land,
Speaker 1: and in fact they can sue UH for trademark infringement
Speaker 1: for example under state common law. The question that the
Speaker 1: government says is whether we're going to give them this
Speaker 1: added benefit. This is a registry and basically you can
Speaker 1: if you're thinking about, you know, naming your own rock band,
Speaker 1: you can go to this registry and see see you know,
Speaker 1: what names are already taken and make sure you're not
Speaker 1: infringing on anything. Um And it also, um you know,
Speaker 1: give some legal benefits, some presumptions when you're in court
Speaker 1: if you're the owner of a registered trademark. And so
Speaker 1: the government says the fact that we're prohibiting anybody from
Speaker 1: saying anything, We're just deciding where that we're going to
Speaker 1: confer a benefit, and when we do that, we have
Speaker 1: a lot more discretion. Loo Greg. It seems as if
Speaker 1: there is too too much discretion. I mean, there are
Speaker 1: bands who have been recognized trademarks for example and w
Speaker 1: A Uncle Cracker. Those are those are bands that do
Speaker 1: have trademarks. And so isn't it viewpoint discrimination? Yeah? That
Speaker 1: that that is certainly one of the arguments and another
Speaker 1: way of thinking about it. I'll though this didn't come
Speaker 1: up as much as I might have thought it would have.
Speaker 1: Is that this provision in the law just talks about
Speaker 1: disparaging um, and it doesn't really define what what exactly
Speaker 1: that is. And so you do have these results that
Speaker 1: seem like they are they are inconsistent with one another. Uh.
Speaker 1: And that was the general sets in the courtroom that
Speaker 1: there was um that there was real concern that the
Speaker 1: government uh did have the ability to say this name
Speaker 1: is okay, this name is not okay. But the justice
Speaker 1: did have some concerns about how to draw lines here,
Speaker 1: didn't they They did, it wasn't and they didn't get
Speaker 1: a whole lot of help from Mr TAM's lawyer on that. Um.
Speaker 1: You know, one question that came up in't ever really
Speaker 1: got answered was or well, how does it you know,
Speaker 1: could the government, you say, a local government have a
Speaker 1: Shakespeare festival where what we're gonna do is we're gonna,
Speaker 1: you know, talk about how great Shakespeare was and um,
Speaker 1: uh you know, isn't that a form of viewpoint discrimination?
Speaker 1: But in a very limited context. And and so what
Speaker 1: they seemed to be really searching for was to try
Speaker 1: to figure out how we could say that trademark is
Speaker 1: different from all these other contexts where um, the government
Speaker 1: might uh legitimately be able to say, in this particular context,
Speaker 1: we're we're only um talking about certain things. Right. How
Speaker 1: did the Federal Circuit, which handles these cases, handle this below, Well,
Speaker 1: the Federal Circuit decided with with the band the band um.
Speaker 1: Mr Tam and said that this was a violation of
Speaker 1: the First Amendment, which which essentially made of a guarantee
Speaker 1: that the Supreme Court would would take up the issue. Um,
Speaker 1: there is another case I should point out that that
Speaker 1: involves the Washington Redskins that may or make them out
Speaker 1: the same way or may not come out the same way. Well,
Speaker 1: you know, TAM's lawyer argued, if I understood his argument correctly,
Speaker 1: that there is a way to for the court to
Speaker 1: decide this without getting to the constitutional question. That is,
Speaker 1: they could just sort of decided on statutory grounds. Is
Speaker 1: there a way for them to do that if they
Speaker 1: find they can draw a lines, well, could they could
Speaker 1: decide that this is just not disparaging um. But but
Speaker 1: that that did not really come up. In fact, I
Speaker 1: don't think it came up at all in the argument
Speaker 1: it um. Uh, you know, would involve them making the
Speaker 1: kind of fact based judgment called that the Supreme Court
Speaker 1: doesn't really like to make it. Would you know, it
Speaker 1: might be a way of of uh, you know, getting
Speaker 1: out of the cases they decided they don't want to
Speaker 1: decide very much. But this is this is a court
Speaker 1: that likes First Amendment cases, likes First Amendment issues. They weren't,
Speaker 1: you know, being shy about grappling with these big questions.
Speaker 1: They just, uh, we're struggling a little bit to figure
Speaker 1: out where to draw the line. Greg, thank you very much.
Speaker 1: That's Greg Store, Bloomberg Supreme Court reporter and our esteemed
Speaker 1: co host here on Bloomberg Law talking about an argument
Speaker 1: today in on a First Amendment case in a trademark
Speaker 1: case in the Supreme Court