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The Slants Win Supreme Court Battle Over Band's Name (npr.org)
147 points by gnicholas 158 days ago | hide | past | web | favorite | 122 comments



More detailed legal analyses, including repercussions for the Redskins case and controversies regarding hate speech, from the Volokh Conspiracy:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...


In the polarized and racially tense environment we find ourselves in, I wonder how the supreme court would have ruled had the band members not been Asian American. Personally, given the circumstances and the intentions of the band members, it feels ridiculous that the government would have refused to trademark the name, however I'm sure a lot of people would feel differently if it was a white supremacist band named something egregiously racist towards minorities.

I'm sure some alt-right types will take full advantage of this decision to do what they do best - troll


I don't think it would. The justices are smart people, they know full well the precedent they have set can be used by white supremacists et al. Their decision explicitly affirms that hate speech is not exempt from First Amendment protections.

As an aside, this is why the judicial system is probably my favorite branch of government. Debates in Congress are not real debates; congressman are using them to score political points, not convince the other side of their argument. Same with the executive branch, it's all about re-election which means they have to concern themselves with the optics of their actions. Only in the judicial branch do we at least try to make decisions based on reason and rational argument. It's how we got legal interracial marriage at a time when something like 90% of the population thought it was immoral. The justices don't care about the optics of the case, only the facts, because establishing a precedence means these decisions can have broad consequences.


> The justices don't care about the optics of the case, only the facts

Well... sort of. In reality they do a complicated and delicate balancing of the optics, practical effects, and ivory tower type rationality. Though I think your point, drawing a contrast, still stands up quite well.


Lots of people in this thread are equating smarts to a lack of inherent human bias. I agree that there is a relationship there, but if you read enough cases, you get the feeling they often stretch to get to the conclusion they had (knowingly or unknowingly) predetermined.


Oh justices are absolutely biased, it's impossible to have a human being who isn't. The point is that the justices have to defend their decision with some sort of rational argument, while congressman simply vote yay or nay on a bill without qualifiers or precedent being set.


That insulation from politics is the same rationale for monarchy/hereditary positions/equal-representation-in-senate/electoral college.

When we're in the victorious minority, we like insulation from direct majority rule, but when we're in the disgruntled majority, those restrictions on democracy aren't quite as attractive.


Insulation from politics isn't really why I like the judiciary. It's that their entire basis for influence requires a line of reasoning and rational thought. Having electable judges is to some degree orthogonal to the issue.


That's a great point. I'm glad as well that we have at least one part of government that is able to keep a head on their shoulders.


The Washington Redskins had already filed an Amicus brief in support of this change.

It seems weird to me that this became a free speech issue; I had always assumed trademarks were not a form of speech, just business protection (similar to a patent).


The name of your business is indisputably considered speech. By providing trademarks to some business names and not others, the government is providing substantial commercial rewards to certain kinds of speech over others. It might still be a kind of business protection, but the issue is that they must provide that protection without regard to the speech of the applicants.


To be clear: very few people involved in the Redskins naming controversy think they should be prevented from using the name as a matter of law. It's not inconsistent to believe they have a first amendment right to name the team what they want but also that the name is offensive and should be changed (or even that the NFL is within its right to force such a change).


Very few "members of the public", maybe, but that doesn't really matter for much when the Patent & Trademark Office is attempting to strip them of their patent protection because they consider it a slur.

https://en.wikipedia.org/wiki/Washington_Redskins_trademark_...

That was compounded SCOTUS' rejection of the Redskins appeal, though this opinion should basically resolve the Redskins dispute anyway.


Trademarks are a form of censorship.


South Park had Cartman use the un-trademarkable version of the Redskins to achieve his personal business goals in an excellent season of South Park: https://www.youtube.com/watch?v=rnK-jYzaWtw


That's quite a claim you just made. By the same reasoning, would you consider copyright censorship as well?


I have no doubt the Redskins could keep their name if they were actually comprised of Native Americans that wanted to call themselves that.


Well, as this decision effectively strikes down the provision that the PTO was using to deny the Redskins trademark protection, they effectively just won the right regardless.


Then no more Dallas "Cowboys" either.


Cowboys and Giants aren't a race. Celtics is not a racial slur.


And let's not even get into the Boston "Celtics"...


Yeah, the police union will take that one and keep it for themselves faster then you can say donuts in the break room.


And clearly the Giants are the size of mere mortals.


I think it's pretty hard to argue that their decision would have been any different regardless of the ethnic makeup of the band.

Whether or not one agrees or disagrees with the political views of any of the Supreme Court justices, I think you'd be hard-pressed to argue that any of them are unintelligent. They're very clearly aware that this ruling sets a precedent that will apply to future trademarks regardless of the background of the applicant, and yet still ruled unanimously in favor of the band.


I don't think you give the supreme court justices enough credit. I think most cases they see are "exemplar" cases, not average cases, as to improve the chances of a favorable ruling. The justices are aware of this fact.


I think trademarks generally take at least 6 months to go through, so this probably isn't a great avenue for trolling. Also, you could already call yourself whatever you want. It's not that much more impactful to be able to put a little TM next to your group's name.


I believe you don't need to register in order to use TM(™), you just use it. Once you've registered, you use ®.


It could actually be used against racists, right? You could trademark a bunch of offensive terms and then sue alt-right types for trademark infringement whenever they use those terms in print or something. IANAL and only have a basic understanding of trademark law, so I'm probably missing something.


I think you have to actually be using the terms in some bona fide business context for them to be eligible for trademark protection. It's different from patent protection, where you can just sit on a patent without using it.


You also don't become an "owner" of the word, you just get an exclusive right over its commercial use on a specific sector.


Probably the same way. Although the petitioners in his case were Asian, it is well known to the Court (being seated in DC) that the same legal issue is also involved in the long-running legal/political dispute over the naming of the Washington Redskins football team.


The Redskins also filed an amicus brief in this case, so even if they somehow managed to avoid hearing about it, they would have found out about it from this case.


The Redskins thing is hardly a regional issue unknown to the rest of the country (not that I disagree with your point).


>I'm sure some alt-right types will take full advantage of this decision to do what they do best - troll

I see that as a good thing. That kind of trolling works because it points out hypocrisies in the underlying system.


Haven't "trolls" always benefited from freedom of speech and a government that takes that right seriously?

If we want a free and open society we need to take the bad with the good.


well, presumably this ruling restores the Redskins trademark to the football team, and certainly the Justices would know this. since the majority of this organization is not presumably Native American, your question isn't speculative but is directly answered: they hold the the infringement of free speech cannot be justified.


Words are words, people are welcome to be shocked or amused if somebody uses the word slant, cracker, wetback, wap, gook, frog, or paddy. Trolling, joking, or dead serious, no word should be off the table.


For backstory, here's NPR's Planet Money podcast about the situation prior to the SCOTUS ruling:

http://www.npr.org/templates/transcript/transcript.php?story...


Kudos to ACLU for fighting a good fight. This excerpt from their official statement[1] sums it up pretty well.

     Censorship doesn’t just violate the First Amendment — 
     it often doesn’t produce its intended results. As many 
     activists who lived through the civil rights era, or 
     protested in the streets just this past year, could tell
     you: Restrictions on free speech are often applied most 
     stringently against groups trying to challenge the 
     status quo.
[1]: https://www.aclu.org/blog/speak-freely/victory-slants-are-of...


If N.W.A could be trademarked, I don't understand how anyone thought it was right to deny The Slants.


Would their trademark have been the full name spelled out or is it literally "N.W.A.?" I'd imagine that would have previously made a big difference.


Well if it was written out would it matter? In general free speach should be absolute (yelling fire in a packed movieis not). It does not matter if someone thinks the speech is offensive. If that was the case can we ban Fox News? Conan sense won here, for once.


> Well if it was written out would it matter?

Yes, if N.W.A had been used as a precedent to support the Slants it would matter whether or not N.W.A. was written out. The more fundamental question of whether slurs should be protected is separate from the precedential question of whether slurs have been protected in the past.


The set of concurring opinions already gives me a headache.

> ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–A, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined, and in which THOMAS, J., joined except for Part II, and an opinion with respect to Parts III–B, III–C, and IV, in which ROBERTS, C. J., and THOMAS and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., took no part in the consideration or decision of the case.


This is a win for a free society


I dunno, I think it's something about which reasonable people can disagree. It's not a free speech question, it's an intellectual property rights question. Should the government provide IP coverage for potentially offensive product names? Apparently, yes, but I don't think opponents are very far out on a limb, either.


> It's not a free speech question, it's an intellectual property rights question.

No, it's a free speech question with regard to intellectual property, to wit, “may government engage in content-based discrimination in deciding the allocation of intellectual property, specifically trademark, rights.”


It's an intellectual property law question based on the emotional reactions of people to speech. It's possible that this is both a free speech case and an intellectual property rights case.

Do we want to be in a society where only things deemed non-offensive are protected? Seems maybe a little arbitrary and capricious?

Personally, I'd rather ditch most IP entirely, but that's rather a different issue.


> Do we want to be in a society where only things deemed non-offensive are protected?

Well, offensive to whom? There's obviously "Nigger"... But wait. It's offensive if a white person calls a black person that. But many a time, blacks will call each other that to 'own' the word and reclaim its power. So we have an immediate example of an offensive word that isn't offensive in many cases.

Or in recent years, simply asking "Are you a man or woman?" is offensive if they pull the 'not gender binary'-card. Yeah, we can ignore the fact that you either have sperm or eggs, or genetic anomalies that have interesting medical conditions.. But the question in certain groups is "Offensive".

Then there's the last group of people who are, what I call, professional victims. I've not seen a conservative one of these yet. They primarily are in the extremist liberal camps, and the smallest innocuous things will set them off in tirades. To them, everything they don't do is "Offensive". And this "Offensiveness" changes as per person. I usually treat these people by ignoring them. You cannot win. (An example of one of them is demanding to have others use some pronoun like hir or zir or zem. And they will get angry if you ask, don't ask, use a different one around other people or... )

Edit: I try for a variant of the Robustness Principle. Unless someone is intentionally mocking me, if they get some term wrong or use no longer "politically correct" terminology, I try to look past that for their underlying idea.


Then there's the last group of people who are, what I call, professional victims. I've not seen a conservative one of these yet. They primarily are in the extremist liberal camps, and the smallest innocuous things will set them off in tirades.

Donald Trump. Professional victim since 1946. Far-right conservative since at least 2008. Recently threatened to cut off relations with several of our closest allies because the elected leader didn't congratulate him quickly enough after November 8th. Has claimed since his inauguration that (a) Democrats, (b) Republicans, (c) the government, and (d) the Media are out to get him, despite being part of each of these groups during the last few years.


> Then there's the last group of people who are, what I call, professional victims. I've not seen a conservative one of these yet

heh. The "War on Christmas" sprang to mind without even thinking about it. I mean, a large number of people spent Christmas 2015 offended by the color a cup wasn't.


> Or in recent years, simply asking "Are you a man or woman?" is offensive if they pull the 'not gender binary'-card

Outside of very narrow circumstances where it's actually relevant, asking someone's gender identity or sex is likely to be offensive even without a forced binary choice and even if they don't subscribe to a non-binary identity, simply because it implies that they are going to be judged on that rather than their ideas or actions (or by how their ideas or actions fit your perception of sex/gender roles rather than the merits of the ideas/actions on their own.)


I've not seen a conservative one of these yet.

Ive seen plenty of them. They rail against any sign of diversity as an attack on their white, heterosexual normalcy. Check out the forums on IGN. They are outraged by the sight of a penis in a tv show (American Gods) or a person of colour cast in a leading role.


Well, point made.

I've seen a bit of these types, but usually they wore iron cross rings, or white robes (KKK). Even some of the more extremist Christians I know haven't acted quite like that. Yes their preference is very much against homosexuality and more liberal policies of "Do what you want as long as you don't harm others", but I haven't seem them go out of their way like the extremist liberal ones do.

I've even been screamed at by some extremist liberal woman because I (a male <shudder>) dared to walk through a door and hold the door open for her, err, hir, err, "it". And note, even if you can't see it, am a bisexual male.


Your comments here are ironic because while claiming to have only ever witnessed "professional victims" on the progressive side, you're displaying the conservative version of the same thing. You don't recognize that's what it is, you just think you have legitimate complaints about how you've been treated due to your identity. That's exactly what the people on the other side think as well.


I think you just said that anyone who was ever "victimized" by a professional victim is, themselves, a professional victim.

I want to believe that's not what you're saying, but I'm having a hard time parsing something different out of your comment.


Yeah. I spent about 20 minutes mulling over how to respond, and instead opted not to. But yes, you hit it in 1.

Maybe the conservatives have their own. Pretty sure they do. Ive seem some kicking and screaming with Christianity, but even in Indiana, apathy with regards to religion seems to be taking more of a hold. And there's that Starbucks cup thing.. I'm 100% sure that was social media "fake news". I never saw anyone in real life actually complaining about that, other than for a week or 2, it was bandied around everywhere.

Then again, the ones who've consistently yelled and screamed and flailed around are the special snowflake extremist liberal SJWs over perceived and non-existent slights. And yes, I'm a liberal complaining about how extremists are ruining liberalism, because what they want freedom for you to comply with them.


What you're missing is that I don't think that there is such a thing as a "professional victim". I think it is just a term some people use to delegitimize any slights perceived by the "other side".


That's a perfectly reasonable point and position to take but at the same time, I think I could point at some professional victims and you'd concede that they are them.

Like the guy who goes to places and gets himself into horrible situations on YouTube Live or Twitch, when people call in a Swat Team onto his location.

And I don't even know anything about his politics, I just know that he has a following, and he literally makes (was making?) money off of his streams, which people were attracted to based on wanting to see harm come to him!

Literally inconveniencing airplanes and airport concourses full of people so that he could get some more media attention on his scam.

So, I think that's despicable and I've never looked up his streams as a result, because I don't want him to profit. Like I said I don't even know his politics, and I won't say anything about mine.

But to argue the singular point, I think there are some professional victims and it is well... dismissive, to be dismissive of them.


That seems like a different definition of "professional victim" than the one implied up-thread.


I guess maybe, but I don't think that advertising revenues or even actual cash values are a necessary component of "profit." Different people do things for different reasons.


> Then there's the last group of people who are, what I call, professional victims. I've not seen a conservative one of these yet.

Really? Because I seem to not be able to take a step without tripping over the mainstream conservative Christians whining about the persecution of "people of faith" everytime the government fails to sufficiently privilege their religious viewpoint in public policy, or some private actor fails to acknowledge their preferred religious holiday in standard commercial greetings, or...

Among numerous other conservative examples.


> Then there's the last group of people who are, what I call, professional victims. I've not seen a conservative one of these yet.

Boy, you live in some bubble don't you. There are so many examples, it boggles the mind that you haven't seen them.


> Do we want to be in a society where only things deemed non-offensive are protected?

There are already many limitations on truly free speech, as there should be. Should this type of speech be limited? It's a valid question.

My main objection in this thread was to the specific statement: "This is a win for a free society." It implies that the defense was fighting against a "free society." I'm saying that two people can disagree on this specific matter while both being in support of a "free society." There's no need to polarize this issue in terms of free vs. non-free.

The trademark office interpreted the statute one way, the plaintiffs another way, it worked its way through the courts and the decision came down in the plaintiffs' favor, so the trademark office will change its interpretation. The system works.

There's no need to villainize the trademark office for disagreeing on the interpretation of a statute that hadn't yet been clarified by the courts.


Yes, two people can disagree while still ostensibly supporting the same concept, but it doesn't mean that the two viewpoints are equally supportive of the concept.

Some people argue that a hijab is empowering to women, and is a sign of freedom. Some argue the exact opposite. Just because one group says they believe in a given thing doesn't mean they actually do things which promote the thing they claim they support.


There's a big difference between the government letting you use an offensive term, and the government preventing anyone else from using that offensive term because you've trademarked it. Trademarks are not a right under the first amendment, they are a privilege granted under Article I, section 8, paragraph 8.


No, they are not a privilege. That section of the constitution is talking about the power of the congress.


The Constitution grants Congress the power to grant IP protection. Congress can elect not to exercise that power.


Per Sable v. FCC[1], any restriction that is subject to examination of the content is subject to strict scrutiny. Strict scrutiny, where applied appropriately, would mean that the government is very unlikely to devise a restriction on content without being able to show that the content of the speech being restricted weren't tantamount to incitation, treason, etc.

You're correct that Congress may choose not to exercise that power, but they are prevented from being able to exercise that power arbitrarily, and especially not on matters of obscenity or indecency without passing(failing?) the Miller test[2], which this clearly doesn't, and "The Slants" arguably satisfies none of the conditions.

[1] - https://en.wikipedia.org/wiki/Sable_Communications_of_Califo...

[2] - https://en.wikipedia.org/wiki/Miller_test


No one is disputing that the band has the right to call itself the slants, or any other offensive term they choose to use. But it is far from clear that they should be entitled to trademark protection for it, Sable notwithstanding. (Well, it's clear now, but it wasn't clear yesterday.) The government already exercises a lot of authority to control the content on the public airwaves, I don't see why trademarks should be any different. But I haven't had time to read the opinion yet. Maybe I will find enlightenment there.


I'm honestly convinced that, post-Sable, the FCC is poised to lose should anyone challenge their obscenity provisions, Miller test notwithstanding.

Since then though, the FCC has been more prudent with what they go after, and the fines have are low enough that it serves everyone's interests to keep everything de rigueur.

NBC doesn't want to have to worry about having to compete with smut on the public airwaves, or having to big against Pornhub in the next spectrum auction. Meanwhile, the FCC of course enjoys the presumption of authority over the airwaves with a quasi-plausible veil of content neutrality.


Yes, the people grant the power to Congress. If Congress chooses to not use that power, then the people can put new congresspeople in office.

By your definition, passing laws is a privilege too, because Congress can choose to not do it. Perhaps that's correct usage of the word privilege but I don't really see it


I don't really want to quibble over terminology. I don't care what you call it, the point is just that it is not a Constitutional right on the same legal footing as the right (say) free speech.


Anyone can be offended at anything. People saying "bless you" offends me... does that mean there should be a law against it? No! I support your right to offend me! Please, feel free to say offensive things, and if I am offended, it's my problem, and I'm willing to own that. We all need to grow up.

If we live in a society where anything offensive can be legislated, then one group will seize the power to dictate what is considered offensive.

Each person should have their own freedom to decide what offends them or not. But they shouldn't be protected from being offended... that would be impossible, ultimately, and society would no longer be free.


Yes. I'm offended by restrictions on speech. Therefore restricting speech to avoid offending people is logically impossible.



What exactly is the downside to the government providing the same IP protection to offensive names that they do to inoffensive ones?


It could be misconstrued as granting legitimacy by "officially allowing" the slur.


The government officially allows marches by the KKK too, but nobody says, "oh, that must mean the government approves of their message!"


Just call it "de-platforming" when the government denies KKK marches. Then every college liberal will be on board.


I have no strong opinions on the matter. I imagine you could read the defense's arguments in this case to find out. SCOTUS Blog may be a good place to start researching.


Would the defense argue for the benefits of withholding trademark protection, or just the constitutionality of doing so?


I don't think those questions are as separate as you imagine.


It's definitely something about which reasonable people can disagree. But I, for one, am glad to see this limitation to the power of declaring oneself offended.


Your framing begs the question. The court ruled that the government does not, in fact, "provide IP coverage." You have a right to IP coverage. It is not the government's speech, it is your own.

From the opinion: "If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence o rmuffle the expression of disfavored viewpoints."


> From the opinion: "If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints."

I have a hard time with this because I can't see how the dots connect.

If government grants exclusive use of some term to me, that means you can no longer use the term in particular contexts. That's more stifling than having no protection, isn't it?


The Court believes it is stifling, yes. The question here is: can the Government engage in viewpoint discrimination? One situation where the Government can engage in viewpoint discrimination is when the Government itself is speaking. In other words, the Government is allowed to have a vieewpoint and express it. It would be crazy if it could not; there would be no way to advocate for policies with the public. In this case, the Government argued that issuing trademarks is "government speech" which is a constitutional law term of art. The Court disagreed and gave a lot of examples of how this is different from when it ruled on "government speech" in the past. Trademarks, the ruled, are private speech that the government happens to register for commercial reasons. They are arguing here that if they were to rule that trademark issuance was "government speech," then the government could simply come up with "stamp of approval" schemes and then issue them only to favored viewpoints. One major example is copyright -- the Court made the point that there would be nothing stopping the Government from not issuing copyrights to books that contain "offensive" material.

So, because it happens to be stifling private speech to issue a trademark or to not issue a trademark, the Government can only do it for narrow reasons that survive the very stringent tests the Court has set up. The largest one is that the Government cannot engage in "viewpoint discrimination." They may not prevent speech that is offensive because it happens to offend someone, in other words. This wasn't really in dispute, anyway, as it is well established. The government thought they could apply one of the exceptions -- "government speech" -- and the Court ruled they could not.


> It's not a free speech question

The Supreme Court unanimously disagreed with your perspective.

e: c.f. the article

> "The disparagement clause violates the First Amendment's Free Speech Clause," Justice Samuel Alito wrote in his opinion for the court. Contrary to the Government's contention, trademarks are private, not government speech."


It's pretty obviously a free speech question when the government is regulating band names.


That's not what's happening. The government was refusing to protect band names. They weren't saying "You can't have that name" they said, "That name is (potentially) offensive, which means we can't protect it."


That is what the government was saying. But a band would have a harder time staying alive if they had no trademark.

For example, the band said that you can't get signed by a label if you don't have a trademark on your name. Also, you can't prevent others from selling merchandise bearing your name.

So while the government wasn't telling them that they couldn't use the name, the government's desired outcome would have made it more difficult for the band to survive. Same for the Redskins — and how much money do you think they make on merchandise?


> the government's desired outcome would have made it more difficult for the band to survive

True. The govt makes lots of enforcement/promotion decisions, many decisions that make things harder for other people/companies (and easier for others). In fact, if a govt decisions has an absolutely equal impact on all parties, it's probably not a law that does anything.

I'm not saying there isn't a free speech issue - just that saying "by refusing to limit free commerce the govt is infringing on free speech" show the two sides of the argument, both reasonable.

The govt wasn't refusing to enforce with the intention of HARMING anyone directly (probably), it was trying to avoid taking enforcement action that WOULD harm people. Not specific people, but the protected class of race in this case. If you think otherwise, imagine the hypothetical where this occurs, realize some people think of it this way, and see that it means the disagreement is reasonable.

I'm probably 60/40 in agreement with the court decision, but that 40% is because I can see the arguments on the other side as well. Your premise that the harm to the team is a problem doesn't hold up overall: It's a tough concept to accept that _intent_ makes a law valid/invalid.

Make voting harder with the intent to combat voting fraud, the law is likely valid. Make voting harder with the intent of disenfranchising a particular group, the law is invalid.

A cop shoots someone because they felt threatened, is legal. A cop shoots someone because they want to, it's not legal.

Agree that it SHOULD be that way or not, this is pretty well established in the court system for quite a while. Which means a govt decision that hurts someone (not this case, a generic one) because of a non-discriminatory INTENT can be valid, while the same decision made for discriminatory reasons can be invalid because of that intent.

There are plenty of other arguments that can be had here (Was this decision intentionally discriminatory? Does refusing to enforce (i.e. not taking action) equate to taking action?) but that it harms the team is not terribly relevant.


Would you say the same logic should be applied to all intellectual property, or are trademarks special?

For example, should copyright laws depend on whether the thing being protected is offensive?


Careful, now; Pfhreak never said it should not be protected, only that the issue is not "the government regulating band names".


Does this mean that N.W.A. can fill in their acronym? (Friend of mine was a big fan back in the day. We had arguments about the name)


That was the government's argument and the Court's decision addressed it. Trademarks are not "government speech," they existed before the government -- both at the state level and in Common Law. Your trademark is protected because it is your trademark, not because the government decides to protect it.


TMK the burden of defense is on the trademark holder, not the government. The Trademark simply allows the defense.

Given that the government protects many other forms of offensive speech in much the same way I find that rather hypocritical. Should authors be allowed to plagiarize if the content is "offensive"?


Trademarks are private property. If the government can arbitrarily chose which private property it will enforce, you open up the possibility of rife corruption.


Whoa! I'm not sure how the government telling OTHER people what they can't do is YOUR private property.

There are lots of items that can be used to debate the for/against of the topic: Free Speech vs the government protecting hate speech, if protecting is the same as promoting, the role of government enforcement in commerce, etc. but I can't see "property".

In fact, unlike copyrights, the point of trademark is to prevent consumer confusion. It's not something granted to your for YOUR benefit, but rather for the benefit of consumers. Someone can trademark the same name in a different (but potentially related field) if there is no consumer confusion. Likewise, a trademark in an unrelated field can be denied or ruled invalid if it is shown that there IS consumer confusion. (example: Sleep Inns were original McSleep Inns, until McDonalds (the food manufacturer) shut that down. (http://www.nytimes.com/1988/09/19/us/mcsleep-loses-to-big-mc... - That article is thin, but my understanding is that McDonalds actually used polling to help prove that it was confusing, but that might have been a different case.). You can BENEFIT from this (by marketing your product to build a brand with a positive reputation), but a govt rule that benefits you is not the same as that rule being your property.

> If the government can arbitrarily chose which private property it will enforce, you open up the possibility of rife corruption.

I'd drop "arbitrarily" from this statement, as it seems a bit circular. The decisions aren't "arbitrary" - the line of what is and isn't "hate speech" is subjective and fuzzy, but almost all of the law boils down to a subjective fuzzy line (the "reasonable person" argument). Unless you're saying that corruption will MAKE it arbitrary, at which point it's not the arbitrariness that makes it potentially corrupt, but the corruption that could make it arbitrary. Drop the "arbitrarily" and I think the statement is fine, even agree with it (though I don't consider trademarks to be property).


Amen to that. Coming from a place with heavy restrictions on speech, it means a lot to me personally that the US continues to lead the charge on not allowing government to restrict speech.


I heard a podcast about this and the singer of the Slants said by naming the band that, they were "reclaiming" the disparaging word.


It begs to ask the question "who is the word really disparaging to"?

I grew up in Canada in the 70s, and was called all sorts of epithets, and "slant" isn't even remotely the most disparaging of the things I've been called.

Note my handle as well -- I've been using a variant of it for 30+ years. A white guy gave me the handle "slant" in the mid 80s during the BBS days... and yes, it had something to do with my ethnicity. But I wasn't offended, and decided to own it.

Fast forward to the 90s, and the word "slant" was too common to be able take as an alias anywhere on the Internet, so I innocently added the suffix "YYZ" (the three letter code for Toronto's Pearson International Airport). I didn't even realize for a few years that it phonetically sounded like "Slanty Eyes" until a friend pointed it out.

I've been lucky to not get any flack for my handle in most places, with the exception of one instance. Some of a white friend's twitter friends (also white) saw a twitter conversation I had with him and told him to tell me they found my name offensive. Which I found to be incredibly bizarre.

-- edited fixed grammar issue


> Some of a white friend's twitter friends (also white) saw a twitter conversation I had with him and told him to tell me they found my name offensive. Which I found to be incredibly bizarre.

It's another form of this:

http://imgur.com/aqnfsVa

I have a white friend who is extremely sensitive about the word "nigger". So much that he wouldn't join a black person's Discord server named "The Real Niggaz" and got upset that someone in a game had the name "TheNiddaSteve". That's not a typo. Nidda. He was upset about "Nidda" because he believed they really meant "nigga".


Turns out that that the human brain doesn't seem to make a strong distinction between the meanings of words and the determination of the appropriateness of words used in context (i.e., their moral value.) Understanding this has taught me a lot about human behavior.

Or maybe it's just primed me to expect certain kinds of misunderstandings.


If it was the Planet Money episode [1] I also heard, I thought it was interesting how uncomfortable I was when the reporter was asking the lawyer what words should be off limits, and he was fine with every one of them being trademarked.

[1] http://www.npr.org/sections/money/2017/05/26/530252213/episo...


I just listened to that this weekend. I noticed in the list of sample slurs they discussed they avoided "nigger" and variants but that is exactly what white people will now rush to.


White people could already use "nigger" in the names of their bands. Why would they now "rush to" use it just because it can be trademarked?


Right. In the earlier NPR episode, it was clear that they'd been using the name for a while, and it was only when they started conflicting with _other_ bands of the same name that they sought the exclusionary power of trademark.


Yes; I think they were intentionally using slurs that would apply to the lawyer. The problem with that, is that you're relying heavily on how offended a single person is as an indicator of how offensive a word is, but the point was made anyway.


This was pointed out in the article:

>The band has said it wanted to reclaim what is often seen as a slur.

>"We grew up and the notion of having slanted eyes was always considered a negative thing," Tam said in January. "Kids would pull their eyes back in a slant-eyed gesture to make fun of us. ... I wanted to change it to something that was powerful, something that was considered beautiful or a point of pride instead."


I'm guessing it was the Planet Money episode they did last month? Great episode:

http://www.npr.org/sections/money/2017/05/26/530252213/episo...


On the one hand, this is a great win for Freedom of Speech in the United States as it relates to commerce, and on the other hand, The Slants is a terrible fucking band name and deserves to be made fun of at every opportunity. Which, coincidentally, also is a nice Freedom of Speech benefit. In other news, Radio, Satellite, or Internet broadcasters still not compelled by law to play their music or mention their name.


What's terrible about it? It's concise, memorable, and apparently nobody else is using it. Perhaps it's terrible because some people use the word offensively, like "Queen"?


I am a die hard Redskins fan (if you're in the bay area and want to watch games with me, reach out).

This is a win for the redskins but I think the majority of us don't care anymore about the name that strongly. Pretty interesting to see this resolved though, especially since there was a ton of fake-news when this case first started about a name change being imminent.


To me it seems like whether it should be possible to trademark that team name and whether it's a name the team should feel proud sticking with in 2017 are two pretty different questions.

I am happy with this legal decision because I don't want the government to be in charge deciding what is offensive and what's not. I also think it's long past time for them to pick a new name. Just because they can legally have that name doesn't mean they should keep it.


I agree with you on all counts. It's hard to get a new name though after 100 years of history. I don't think it will change under Snyder, since the name recognition is one of the things that makes it one of the most valuable franchises in all of professional sports.


>> Just because they can legally have that name doesn't mean they should keep it.

And there's no business reason to keep it either, imo. Changing the name means you've got an entire fan base who needs to buy new merch.

Because the Washington football team has a local monopoly on NFL football, I can't imagine the negative financial impact of a name change being that significant. Fans tend to care about the team being a winner above all else. So just put a winning product on the field and people will quickly forget about the old name.


Never go up against a guy named Simon Tam.


Perfect outcome. In the USA you're free to name your band any stupid, offensive thing you want... and just as free to make no money selling zero albums because you offended everyone.


You ever hear a black man call another black man nigger? This band made up of Asian people wanted to name their band "The Slants."


Constitutionally irrelevant, as the justices are well aware.


The Butthole Surfers were arguably more well known than The Slants. I'm reasonably sure that the name was a homophobic slur. They appear to have had a trademark back in the day, since expired/abandoned.

https://trademarks.justia.com/758/05/butthole-surfers-758053...




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