Matal v. Tam and offensive speech

This week's case of Matal v. Tam was a challenge to U.S. Patent and Trademark Office rules brought by a California rock band known as The Slants.

• The US PTO will not register trademarks that are “disparaging” to “persons,” because of a rule in the 1946 Lanham Act. What this means is largely left to the discretion of the individual patent examiner. There is, however, a policy that it doesn't matter if the person seeking to register the trademark is a member of the disparaged group of persons. The Slants's schtick is “reclaiming” stereotypes about Asian-Americans; doesn't matter to the PTO, who denied their trademark application as disparaging.
• Simon Tam (frontman of the band) claimed this was a violation of his free speech rights. Conspicuously missing from this case, as with many such test cases, is an explanation for how a minor rock band can afford to go all the way to the Supreme Court. (Amicus brief by the Redskins.)
• I guess some people are just really passionate about protecting their rights, not that I would understand that.
• Query what “disparaging to persons” means. Tam attempted to argue that the regulation should be interpreted to prohibit only trademarks that disparage individual persons. Under this interpretation, you can disparage groups like Asian-Americans, but you can't name your hardware store “The Anti-Walmart,” or your bar “Trump Sucks.” The court found that there was no evidence either in the text or legislative history for this reading.
• Isn't this whole issue why defamation law exists? Should the government really be in the business of protecting people's hurt feelings? Several cases in this area about people who want to use religious trademarks for wine, such as Agnus Dei wine or Madonna wine. Is preventing blasphemy a legitimate function of our government? I of course think not.
• Anyway. The government's best argument is that trademark registration is not individual speech, but government speech, meaning that the First Amendment doesn't apply. No one is putting The Slants' members in prison for using that name; they just can't have a registered trademark.
• It sounds odd to say that the First Amendment doesn't apply at all to government speech, doesn't it? But if you think about it, it would make no sense otherwise. The government speech doctrine is why the government can fund anti-smoking messages without also funding pro-smoking messages, or why the National Endowment for the Arts can fund some artworks but not others. So far so good.
• More debatable cases of government speech: can the government allow certain monuments but not others in a public park? Can the government allow certain messages and not others on license plates? In both cases, yes.
• But the Court is concerned about “dangerous misuse” of this doctrine. License plates and public parks are under the control of the state and identified in the public mind with the state; not so trademarks.
• If trademark registration is government speech, it's incoherent. There are both pro- and anti-abortion trademarks, pro- and anti-capitalist trademarks. How can the government intend to send both messages? I think this is a weak argument. Why can't government speech be incoherent? Private individuals certainly speak incoherently at times.
• Does private speech become government speech just because the private speech benefits from a government program? Think of copyright law. Can the government refuse copyright protection to books it doesn't like on the grounds that copyright registration is mere government speech? Surely being unable to copyright books would be a still infringement of speech rights, even if writers retained the ability to publish uncopyrighted works.
• Another problem here is the amount of discretion given to the patent examiner. One reason The Slants's trademark application was denied was “ the fact that several bloggers and commenters to articles on the band have indicated that they find the term and the applied-for mark offensive.” Dear God, please let's not make free speech rights dependent on what people on the Internet find offensive. If this were the law, I'm pretty sure staging Othello would be a felony.
• Therefore, trademarks are private speech, and banning disparaging trademarks is unconstitutional viewpoint discrimination. “Giving offense is a viewpoint,” and--I say this at every opportunity--speech may not be prohibited merely because it is offensive.