US Supreme Court – Nathaniel R. Jones Center for Race, Gender, and Social Justice

Supreme Court: Offensive Speech May be Trademarked

Guest Contributor: Cincinnati Law Professor Tim Armstrong

An important new Supreme Court decision gives private parties the right to receive federal trademark registration of a term that disparages racial or ethnic minority groups. In Matal v. Tam, the Supreme Court ruled that part of the federal trademark statute is unconstitutional to the extent that it forbids federal trademark registration for terms “which may disparage … persons, living or dead … or bring them into contempt, or disrepute.” To forbid registration of disparaging terms as trademarks, the Court unanimously agreed, violates registrants’ First Amendment rights to free expression even of “ideas that offend.”

At the heart of this case is bass player Simon Tam, a member of a quartet of Asian-American musicians who describe their style as “Chinatown dance rock.” The band chose to name itself “The Slants,” in what the Court described as an attempt to “reclaim … a derogatory term for persons of Asian descent …. and drain its denigrating force.”

“Free White Persons”: Constructing US Citizenship

After over twenty years of living in the U.S., Takao Ozawa wanted to become a citizen. He was a family man, well-educated, a churchgoer. There was just one strike against him: he was Japanese.

In October of 1922, when the Supreme Court heard his case, Ozawa v. U.S., our immigration and naturalization laws limited eligibility for citizenship to “free white persons . . . aliens of African nativity, and . . . persons of African descent.” African Americans had only been added fifty-two years earlier in the wake of Reconstruction, when Congress amended the Constitution to make clear that persons born in the U.S. were citizens.

Mr. Ozawa argued, in part, that he was white for purposes of the law, citing legal and ethnographic authorities to support that notion. And, then there was his appearance. As a light-skinned man, Mr. Ozawa suggested his skin color demonstrated that that he was white. But Justice Sutherland, writing for the Court, rejected that notion, saying a test based solely on skin color was “impracticable.”