Emil Guillermo: Simon Tam's fight to reappropriate "The Slants" seems more uphill than ever
July 29, 2015 8:55 PM
Simon Tam isn't giving up.
But he admits he was taken aback when an unnecessarily harsh amicus brief by the National Asian Pacific American Bar Association was filed this week against his efforts to trademark his rock band's name, "The Slants."
"I was completely surprised, especially since NAPABA and its members have been supporting our work for nearly five years," Tam said in an email to me. "And in my last exchanges with NAPABA president George Chen, he noted strong interest and wide support from NAPABA members. That was in May--the next thing you know, I received a copy of their press release and amicus brief disparaging our social justice work."
If you haven't been following the Portland, Oregon dance rock band's six-year fight to reappropriate for the good what some consider a slur, the case was given a reprieve in April. Tam was granted the chance to bring the matter to the full Federal Circuit court in October.
Tam believes it's a First Amendment issue and challenges a section in trademark law, known as the Lanham Act, that denies the trademarking of disparaging words and phrases.
NAPABA's brief argues that Tam's First Amendment rights aren't compromised as he continues to be able to use the name despite an official trademark.
But it gets complicated. If the government registers a disparaging mark like "The Slants," NAPABA believes it could actually implicate the government in an act of racism similar to when property owners were able to record racially restrictive covenants in county deed systems.
Overall, NAPABA sees trademarking "The Slants" name a "dangerous extension" of the First Amendment:
"Mr. Tam cannot wield his First Amendment rights as a sword to compel the Government to aid him in spreading racial epithets to every concert hall and record store in the nation or to enrich him in the process," the NAPABA brief said. "While Mr. Tam's use of this racial slur may be well-intended--to the extent the use of a slur can ever be so--if the Patent and Trademark Office cannot refuse to register Mr. Tam's disparaging mark, there will be no viewpoint-neutral way for it to refuse to register racially disparaging marks with far more malignant intent."
In other words, good guys like Tam may be fine. But what about the "not-so-good guys"?
What if some KKK-like group wanted to trademark its stylish hoods with the eyelets? Or come close to the moniker "KKK"--all to promote its unadulterated racism? (Apparently, the KKK was protected by the trademark office as a historical society. Just try to infringe on them.)
Or what if Daniel Snyder insists on the continued use of an established slur as the name of the Washington football team?
As a First Amendment absolutist, I have no problem with everyone having the right to his or her own speech. It just means one had better be prepared for the hell fury of debate.
That's as American as it gets.
Don't shut down or censure anybody. Just open up the floodgates and allow for more speech. Subject everyone to their own worst critics. A free debate would likely have economic consequences that could force an entity that insists on using a slur to "do the right thing" and change a truly disparaging name.
That's how it should happen in an ideal democracy.
But we don't live in such a world.
I know it looks like that unmentionable football team and "The Slants" are ironically on the same side of Amendment No. 1.
But I see a difference.
Snyder is white, and not exactly a Native American trying to "take back the name." Or change it, or "reappropriate" it for the good of anything but his pocket book. Native Americans are loud and vocal against Snyder and his team name. And I've been on record against it since my talk-radio days in Washington, DC in the early '90s.
Simon Tam and "The Slants" are Asian American, trying to reappropriate the slur. For the last six years, a majority of the community that knows the activism of the group and what they're about has been behind them.
Makes sense to me. But that's not how the law works.
If The First Amendment argument is a winner for Tam, it's a winner for Snyder.
And that's an unacceptable result that even Tam recognizes puts him in a bit of a pickle.
When I talked to Tam in April, we discussed how the October appeal may not be a good thing for the band if it puts Tam and the Washington football team on the same side. Can the government really honor Tam's trademark request and refuse Snyder?
"At this point, it might be difficult to do so," Tam admitted when I communicated with him this week. "Had NAPABA or the other groups talked about creating space for a culturally competent [solution], this may have been possible. Unfortunately, the court is limiting arguments to simply discuss whether or not the law, Section 2(a), violates the First Amendment. That's more of an all-or-nothing approach. However, through its commentary, the federal judges could have more detailed analysis of the issues. But again, NAPABA's brief pretty much sealed in the Trademark Office's argument of not allowing any seemingly disparaging remarks, whether or not they actually are disparaging."
Tam isn't giving up. He has always seen it as our community's fight to expand what he calls freedom of speech for the marginalized.
"The law hasn't been updated in almost 30 years and quite a bit has changed then, including the Appeal Board's unprecedented decision to order a full panel hearing, so anything is possible," Tam said. "Even if we lose, we still have the option of appealing to the Supreme Court."
Tam's a rock and roller. But he knows it's not over until the folks in the black robes have their say.
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Emil Guillermo is an independent journalist/commentator. Updates at www.amok.com. Follow Emil on Twitter, and like his Facebook page.
The views expressed in this blog do not necessarily represent AALDEF's views or policies.
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