Although the First Amendment may be back in vogue at The New York Times, at least for now, not everyone agrees with Matal v. Tam.
The case involved Simon Young, aka Simon Tam, the 36-year-old lead singer of “The Slants,” an all-Asian-American band whose members chose their name as expressive of three things — their views on life, their music, and their desire to reclaim and empower a phrase traditionally seen as derogatory.
After the U.S. Trademark and Patent Office sought to deny the band a trademark on the grounds that its chosen name was offensive, Tam went to federal court and won on appeal. The Supreme Court ruling affirmed that decision.
In the December 2015 appeals court ruling, Judge Kimberly A. Moore wrote: “It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys.”
In the minds of activists and their lawyers, of course, there are always other considerations, including the idea that trademarks are government speech.
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