Supreme Court Confirms The Bill Of Rights Is Just About Making Money, Strikes Down Trademark Disparagement … – Above the Law

When the Supreme Court handed down Citizens United, most people decried the end of campaign finance reform or rejoiced at all the Obama is a criminal ads they could buy with the backing of kooky billionaires. But the decision also erected a signpost marking the path that most defines the Roberts Court: the provisions of the Bill of Rights are for making money. That corporations are people has reached the point of clich, but theres a reason Roberts started issuing all his oaths of office on a dog-eared copy of Atlas Shrugged when no one was looking.

So when Simon Tams case reached the Supreme Court, we all knew what was going to happen. Tam, a member of an all Asian-American band called The Slants, challenged 15 U. S. C. 1052(a), which sets standards for trademark protection to bar marks that disparage or bring into contemp[t] or disrepute any persons, living or dead. Tams group believes their use of a known slur against Asians and those of Asian descent is an act of reclamation and not one of disparagement.

An interesting factual challenge wouldve considered Brandeis Brief style the expanding body of academic work on the nature of linguistic reclamation and delve into whether the facile neutrality imposed upon words like disparage in the application of the statute improperly excluded valuable expressions from the financial protection provided by a federal grant of intellectual property protection. That would have been a fascinating dive into the changing meaning of language and the problems inherent in interpreting terms in legal texts from a cemented perspective of whiteness.

As would someone just pointing out that the statute is unconstitutionally vague which is the right answer! and calling it a day. But the Court decided to drop an ode to how fundamental rights really only matter as long as theyre about making money, because after all, the business of America is business.

It wasnt a pretty opinion. Professor Crouch said of the opinion that the Courts logic is largely incomprehensible. But the real nut of the opinion can be found in the opening paragraphs of Justice Alitos majority opinion:

We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

Good point! Except no one was trying to ban any speech here. But other than that basic, foundational fact, this is a good point.

What the statute did authorize the USPTO to do is to say, The government wont grant a federally registered trademark with no bearing on your state and common law rights to protect marks for marks that offend. That aside is critically important. An unregistered mark is not some kiss of death to protecting an intellectual property right, and nothing about this statute sought to interfere with that. There are advantages in having the federal government maintain a list of registered marks, but registration is not the source of trademark protection.

Federal trademark protection flows from the congressional power to regulate interstate commerce, and in light of the broad grant of power the Framers gave the government here, its entirely reasonable for the government to impose limits on what marks it gives the imprimatur of nationwide recognition, in the interest of regulating the market. This isnt banning someone from expressing a disparaging view. Its not even banning someone from making money off a disparaging view. The statute barred the federal government from inserting itself into a potential dispute between someone trying to make money off a racial slur and someone trying to make bootleg products to make money off that same racial slur. And, as already discussed, it doesnt even stop someone from suing the bootlegger.

And its in this reasoning, adopted by the majority in a rather fractured decision, that really draws a straight line from Citizens United where the right to express a political opinion metastasized into the right to buy the most access for a propaganda blitz. To the majority of this Court, what interests them about Free Speech isnt protecting the right of individuals to express unpopular or even offensive opinions. When it comes to protecting protestors arrested and bullied for speaking out especially if they do it in front of the Supreme Court this Court isnt eager to lend a helping hand. But if they can spin the hyperbole wheel and transform a government regulation that makes it ever so slightly more difficult to make money into a ban on speech, theyre right there for you. Thats the Bill of Rights this Court wants to build caselaw about.

If only those wrongfully convicted death row prisoners could find a pecuniary justification for staying alive.

(Opinion on the next page.)

Joe Patriceis an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free toemail any tips, questions, or comments. Follow him onTwitterif youre interested in law, politics, and a healthy dose of college sports news.

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Supreme Court Confirms The Bill Of Rights Is Just About Making Money, Strikes Down Trademark Disparagement ... - Above the Law