Simon Tam fought for eight years to register the trademark for his
all-Asian rock band, the Slants. Tam said that the name—a reference to
slanted eyes—was an effort to reclaim a racial epithet for Asians and
transform a derogatory term into one evoking Asian pride. When Tam tried
to register the trademark, the U.S. Patent and Trademark Office (P.T.O.)
said that the band’s name was offensive to Asians and refused to
register the mark. The P.T.O. applied a seventy-year-old federal law
barring registration of trademarks that “disparage . . . persons, living
or dead, institutions, beliefs, or national symbols, or bring them into
contempt, or disrepute.” On Monday, the Supreme Court unanimously
ruled the disparaging-trademarks provision unconstitutional, as a violation of
free speech protected by the First Amendment. (The court’s newest
Justice, Neil Gorsuch, did not participate because the case was heard
before he was confirmed.) Going forward, the government will not be able
to deny registration of any trademark simply because it is considered
offensive.

The ruling makes all manner of racist, sexist, or otherwise insulting
terms eligible for federal registration by someone who wishes to use
them to identify the goods or services they are selling. Lots of money
can be at stake. Registering a trademark means one enjoys a legal
presumption of an exclusive right to use it. In 2014, the P.T.O.
cancelled the trademarks for the Washington Redskins football team on
the grounds that the team’s name offended Native Americans. The team
will now get their trademark registration and have an easier time
preventing others from selling items with the Redskins logos. The
Slants’ aim of reclaiming a slur and turning it into a source of pride
is appealing. But the Redskins scenario captures the more typical reason
for the reluctance to use state power to enable businesses to profit
from racial insults.

Several disturbing trends have emerged since the Supreme Court agreed to
hear the case, nine months ago. Reported hate crimes have
risen,
due to inflamed political rhetoric that observers blamed on Donald Trump
during the 2016
campaign,
as well as a greater willingness among victims to report attacks. Today,
the concept of white supremacy, until recently considered a relic of our
past, has reëmerged and is openly espoused by political groups. At the
same time, several state and local governments have decided to remove
Confederate
flags and monuments from public spaces in the South. Some colleges and
universities have scrapped old mascots and symbols that may be perceived
as implying collective pride in histories of slavery and oppression.
Harvard and Yale have discontinued use of the title “master” for the
heads of residential houses because it connotes being a master of
slaves. Yale has renamed a residential
college bearing the name of U.S. Vice-President John Calhoun, who is famous for
his defense of slavery. While the power of names and symbols to alienate
and offend in diverse communities is being taken more seriously, the use
of words that denigrate minorities is becoming more commonplace. Some
even argue that a backlash against increasing “political correctness”
contributed meaningfully to people’s desire to elect Trump.

For the Justices, the Slants case was decided against a backdrop of
conflicting impulses: on the one hand, to protect “underrepresented
groups” from “demeaning messages,” as the government’s brief in the case
put it; on the other, to enable free speech and open discussion in our
society. Justice Samuel Alito’s opinion for four Justices across
ideological lines reasoned that allowing speech that demeans people—even
on the basis of race, gender, disability, religion, national origin, or
sexuality—is part of “the proudest boast” of our law, which protects the
freedom to express “the thought that we hate,” a phrase taken from
Justice Oliver Wendell Holmes, Jr. We may loathe hateful speech, but the
fact that the government can’t suppress it, even in a time of growing
alarm about the rise of hate crimes, reveals our uniquely optimistic
faith in free expression as protection against tyranny.

An opinion by Justice Anthony Kennedy, joined by three liberal Justices,
was concerned with a particular kind of discrimination known in free
speech doctrine as viewpoint discrimination, in which the government
singles out some speech for disfavor based on disapproval of the views
expressed—and which is unconstitutional. Denying registration of some
trademarks because they are offensive, Justice Kennedy said, “is the
essence of viewpoint discrimination.” He decried the attempt to “remove certain ideas from a
broader debate” and mused that an audience’s offended reaction to an
idea might “prompt further reflection, leading to a more reasoned, more
tolerant position.” We would have to hope so, to believe that unfettered
offense-giving will not simply tear our society apart.

In a sentence that seemed to echo our current political environment,
Justice Alito posited a hypothetical trademark, “James Buchanan was a
disastrous president,” which could be denied registration under the
disparaging-trademarks law. Alito meant to show how troubling and absurd
it is for the government to treat disparagement differently from praise.
Imagine if the phrase “Trump is awesome” could be registered while
“Trump is awful” could not. In this vein, Justice Kennedy analogized the
disparaging-trademarks law to saying that “public officials could be
praised but not condemned.” With a President in power who often adopts a
punitive posture toward those critical of him and hails those who praise
him, the old point that government should not disfavor people’s speech
based on the message has a jolting contemporary resonance.

It may seem confounding that even though discrimination is illegal at
work, at school, in housing, and in public accommodations such as
restaurants, discriminatory speech is so strongly protected by law. The
Court’s unanimous decision was part of a long line of cases assuming
that, though words may hurt, the harm to our polity is far greater when
the government gets to suppress the expression of some views and not
others. But the debate will not end with this week’s ruling. Unlike
governments, private institutions, such as most universities, are not
constrained by the Constitution. Fierce debates on campus over what
words and ideas are offensive and what best promotes inclusion may reach
different results. But the principles animating the Supreme Court’s
First Amendment decision are no less important in places where the
Constitution doesn’t dictate an answer.