USA Today: There is no First Amendment right to compel government aid for disparaging private speech

Published in USA Today's Opposing view: Deny trademark of hateful names on

In an Opposing View Op-Ed, Advancing Justice | AAJC and the Fred T. Korematsu Center offer an opinion about the Lee v. Tam (Slants) case

There is no First Amendment right to compel government aid for disparaging private speech

Preventing officially sanctioned disparagement is not a quirk of trademark law. In many contexts, the government has recognized the harm of disparaging names and has acted to disassociate itself from those names and labels.

Nigger Lake, N.Y. Chinks Peak, Idaho. Squaw Tit, Nev. These places were among thousands in the United States with racially derogatory names. The government has intervened and changed many such names on federal maps and roadway signs. Locals remain free to call places whatever they want. But in many cases, the federal government has refused to sanction and further these private acts of disparagement.

Eradicating government support for racial disparagement is about more than hurt feelings. If the term “slants” was spray-painted on an Asian-American student’s locker, or a Native American center was vandalized with “redskins” graffiti, we would expect authorities to investigate the potential hate crime. Federal laws target the use of racially charged terms at individuals and groups.

Now, the Supreme Court is considering whether we should open federal trademark protection to the same terms — providing government support for derogatory epithets we condemn elsewhere. But there is no First Amendment right to compel government aid for disparaging private speech. The Supreme Court has recognized limits to free expression, particularly in commercial speech.

When a football team calls itself the Redskins, or a baseball team adopts Chief Wahoo as its mascot, or even when Simon Tam chooses The Slants as his band’s name, none is a First Amendment hero. They are businesses using those names for commercial profit. The First Amendment protects their right to do so, but it does not require the government to support their efforts.

Our organizations may disagree on whether The Slants is disparaging or whether Asian Americans have reclaimed the term. But we agree that the federal government should be able to deny registration of disparaging trademarks.

Cecelia Chang is director of litigation for Asian Americans Advancing Justice. Robert S. Chang (no relation) is executive director of the Fred T. Korematsu Center.