Tuesday, February 14, 2017

Trademarking Hate May Not Be a Good Idea in 2017

      America’s present refugee-ban megakerfuffle has led presidential counsel Kellyanne Conway to claim she doesn’t look like a terrorist:

     “I was stopped many times ... after 9/11,” she said on “Fox News Sunday.” “I didn’t resemble, or share a name with, or be part of any kind of terrorist conspiracy, but this is what we do to keep a nation safe.”
But what about Timothy McVeigh? Or Dylann Roof? Does a terrorist have a stereotypical appearance? Conway’s curious declaration shows that this may not be a good time for the Supreme Court in Lee v. Tam to allow the trademarking of stereotypical slurs or other hateful terms.

     (The present author has covered some of these issues in his amicus brief in Gloucester County School Board v. G.G., at 33-38. However, recent events, such as the immigration-order crisis, add further considerations.)

I. From Slur to Scandal: A Natural Progression

     Indeed, if an Asian (or other) rock band like respondent Simon Shiao Tam’s band could trademark “Slants” to “reclaim a racial slur”, could people also trademark, say, “F-cking F-ggots of Coloredness Eat Sh-t”, presumably to “reclaim” the value of sex, gays, people of color, and waste material? And if not, why not? Such unpleasant thoughts might emerge from January 18’s Lee v. Tam oral argument, including the shocking conclusion of Tam’s counsel’s argument,

     JUSTICE GINSBURG: Would you say the same thing about a scandalous mark? Would that be equally impermissible?

     MR. CONNELL: I think that conclusion is inevitable.
Id. at 48. So, not only does Tam’s counsel think that the Lanham Act’s disparagement criterion is wrong, he even thinks the Act’s prohibition against the “scandalous” is wrong as well.

     Truly, if you could trademark some horrible disparaging term like “Big Black [N-word] Watermelons”, what principle prevents you from trademarking an also-“scandalous” term like “Big Black F-cking [N-word] Watermelons to Ravage Promiscuous Preteen P-ssycats With”? (Granted, the example just adduced is unlikely, but it does show how a string of slurs and filthy innuendoes could be slapped together and trademarked, if the Lanham Act is gutted or even over-trimmed.)

II. Trademarked Bigotry as False Advertising

     Moreover, as one may note this Black History Month: since black people, African Americans, have honor and dignity, calling them the “n-word” is arguably false advertising, in that it labels them as something they are not. (The forbidden word, like other slurs, implies that the person is beneath human dignity.) Cf. the Lanham Act, 15 U.S.C. 1125 (allowing civil action for person harmed by “false designation of origin, false or misleading description of fact, or false or misleading representation of fact” re trademark).

     Similar considerations would apply to other groups, e.g., other racial groups, or reducing women to terms about their private parts. Slurs are a sort of falsehood, so maybe should be treated accordingly.

III. Heart of Atlanta and the “Whitefolx” Motel Chain

     There are additional reasons to restrict hatred circulating in commerce, as Lee v. Tam petitioner Michelle K. Lee notes when briefly citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) in her merits brief at 49, re government power to stop discrimination in interstate commerce. Heart of Atlanta, supra, is worth further looking at:

Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color. It is equally the inability to explain to a child that, regardless of education, civility, courtesy, and morality, he will be denied the right to enjoy equal treatment even though he be a citizen of the United States and may well be called upon to lay down his life to assure this Nation continues.
379 U. S. at 292 (citation omitted) (Goldberg, J., concurring).

     If, say, a product called Depraved and Undocumented Latino Tacos (!!) were on sale and had a federal trademark, this “state action” might violate the rights just cited, for a Latino consumer, child or otherwise, or even for any consumer with a conscience.

     See, e.g., Bush v. Vera, 517 U.S. 952 (1996), on the possibility of “expressive harm” from government actions such as strangely-drawn, racially-motivated voting districts: “Our Fourteenth Amendment jurisprudence evinces a commitment to eliminate unnecessary and excessive governmental use and reinforcement of racial stereotypes.” Id. at 985 (O’Connor, J.). Arguably, trademarking a racial slur (or other slur) could and should be “eliminate[d]” as well, see id.

     Back to Heart of Atlanta Motel: thank goodness, there is no such thing in real life as a “Whitefolx” motel chain; but why couldn’t there be, if you could trademark anything now? “Whitefolx” might not be an open statement that “People of color can’t stay at our motel”, but it could certainly be interpreted similarly. Knocking down the Lanham Act disparagment criterion could provide an end run around Heart of Atlanta and the Civil Rights Act of 1964.

     And if anyone thinks that a “Whitefolx” motel (or hotel) chain would necessarily go out of business due to its icky nature and consequent public disapproval: in these days of neo-Confederatism and other “alt-white” phenomena, bigoted businesses could do very well financially, maybe, among certain sectors of the population. (There were newspaper cartoons in June 2015, such as this one, the month of Obergefell v. Hodges and the Charleston massacre, that showed the Confederate flag going down a flagpole, and the gay rainbow flag going up the same or another flagpole; these days, a cartoon could show the flags going in the opposite directions as before.) There could even be an “ironic hipster” clientele, the types of snide folks who’d say, “I’m not really a racist, but ‘Whitefolx’ has a kitschy postmodern time-warp charm to it! Maybe it’s even mocking racism! Book me a room!!

IV. Jesus Dartboard, Anne Frank Dartboard

     Incidentally, “conservative” types who are comfortable with trademarking disparaging racial or gender slurs, might have qualms about trademarking “scandalous” items. How about a Jesus dartboard (of the kind removed from a Rutgers display last year), for example? or worse, a Jesus dartboard where the darts have an obscene or blasphemous shape? Should the Government really have no power to resist the trademarking of such vileness? “Conservatives” or “religious” types who want the Lanham Act disparagement provision overturned, might regret getting what they wished for.

     Or how about an Anne Frank dartboard? Even if her name could not be used sans her surviving relatives’ permission, there could still be, say, a “Dutch Female Holocaust Victim Dartboard”. Does anyone find this appealing? or a good argument for trademarking disparaging/scandalous material??

V. Should Civility Be Considered “Viewpoint Discrimination”?

     Of course, viewpoint discrimination by governments tends to be an evil; should government tell you what to think? especially given the First Amendment? However, is a blanket prohibition on any disparagement or scandal really just another way of saying “civility”? Visitors to the Supreme Court are often arrested if they start chanting or waving banners, regardless of the subject. So is that “viewpoint discrimination”, because they are allowed to behave civilly but not uncivilly?

     Also, yesterday, this author went to a local public (government) recycling center, and noted a sign saying roughly, “No abusive/offensive speech or behavior allowed here.” So is that government-forced viewpoint discrimination, or just common sense? If the sign had said, “No offensive speech re the Republican Party allowed”, that would be a problem, because of the specificity of the prohibition. But a general requirement of civility, especially when it pertains to “filthy lucre” (trademarks) instead of a more purely free-speech field (copyright, political debate, etc.), may not be all bad. (One of Donald Trump’s good points is that he realizes unrestricted trade can hurt American well-being. Yes, and that may include unrestricted trademarks.)

VI. The Thirteenth Amendment and Vicious Trademarks

     Even if some uncivility in trademarks, e.g., the term “Go jump in a lake buddy”, had constitutional protection, the Thirteenth Amendment and its penumbra might allow prohibition of racial (or other) slurs in trademarks. The badges and incidents of slavery are not something to be taken lightly. (And note that there may be no “state action” restriction hobbling the operation of the Amendment, see id.) See Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (Congress, per Thirteenth Amendment, may prohibit racially-discriminatory sale of private property).

VII. Slurs in Context: Some Room for Free Speech

     Of course, a slur might be used in a context that, say, explains bigotry, rather than promoting it. E.g., there is the difference between the use of the “N-word” in Randall Kennedy’s book [N-word]: The Strange Career of a Troublesome Word, and the use of that same word by a Klansman or Klanswoman.

     To presume that a governmental body can never figure out the context of a slur, and can never be fair in a trademark dispute about disparagement, may be to presume too much.

VIII. Conclusion: The Court May Get Bad Marks from History for Approving Bigoted Trademarks

     Hate still abounds in 2017, and bad decisions which border on hate. See, e.g., Kanye West “not American enough” to perform at Trump inauguration,

     Despite his recent meeting at Trump tower and his self-proclaimed friendship with Donald Trump, Kanye West isn’t “typically and traditionally American” enough to perform at Trump’s inauguration.

     That’s according to Tom Barrack, chairman of the Presidential Inauguration Committee, who told CNN on Wednesday (January 18) that the inauguration was “not the venue” for a Kanye show.
Id. Not everyone likes Kanye, but to de-Americanize him sounds like burn-cross-on-somebody’s-lawn territory. (And sounds somewhat like Kellyanne Conway claiming not to look like a terrorist, supra.)

     If that is the kind of America the Court wants, that is a pretty questionable legacy to leave. Perhaps our children deserve better than to have hatred trademarked, and to give a whiff of State-backed second-class citizenship to Kanye, or African Americans, or anyone else. Free speech is important, but just because you can say something, that does not mean you can sell it. (Americans can have carnal relations pretty freely, for example, but that does not mean commercial prostitution must be legal.) Not everything is for sale.

     With the refugee/immigration crisis, America risks being resegregated as we speak, on lines of religion, national origin, etc. It appears some people have not learned the lessons of Buck v. Davis, concerning a Texan black man on death row, for...being black, it seems, incredibly enough.

     Of course, Lee v. Tam offers probably less at stake than there is in the refugee crisis. Still, there is a similar question in both: how much should state action allow stereotyping and hatred? If the disaster that has happened with the Administration’s new (anti-)immigration policies is any clue, maybe the Court should decide Lee v. Tam to let the Trademark Office keep refusing to trademark hate. Somehow, on this day of love not hate (Valentine’s Day), this author suspects that the ghost of Martin Luther King, and all the ghosts or icons we remember during Black History Month, are probably not going to blame the Court for deciding in that kindly and honorable direction.

(Cross-posted, with edits, at Casetext)

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