Asian Band Who Fought for Name: 'We All Have a Vested Stake in the First Amendment'

WASHINGTON – The entertainment world has seen its fair share of groups take ownership of racially charged and sexually disparaging terms: Queen and N.W.A. (Niggaz Wit Attitudes) are a couple notable examples.

But it was The Slants – an Asian-American dance-rock quartet that sought to reappropriate a term used against them by grade-school bullies – who found themselves defending First Amendment rights before the Supreme Court earlier this year.

The U.S. Patent and Trademark Office had denied their trademark application, arguing that the band’s name was disparaging to the Asian-American community despite the fact that band members had never fielded such complaints. Officials in an eight-year legal battle argued that the band’s four Asian members made their association with the disparaging term incontestable.

In the words of The Slants’ bassist and founding member Simon Tam: they were “too Asian” to use the trademark.

Ultimately, the Supreme Court issued a unanimous ruling in favor of The Slants in June that trademarks cannot be denied because they might be perceived as disparaging, which the Washington Redskins chalked up as a victory in their battle to protect their name.

Tam said last week that he plans to continue fighting for First Amendment rights, adding that every American should be invested in the battle no matter where they fall on the political spectrum.

“(The Supreme Court ruling) struck a resounding chord showing the importance of the issue, that it was bipartisan, that we all have a vested stake in the right of the First Amendment and how important it is to fight for those rights,” Tam said via webcast from Sydney, Australia, at a Heritage Foundation event.

Tam was joined by a number of others sounding off on First Amendment rights, including Flying Dog Brewery owner Jim Caruso, who has defended the use of offensive language from Hunter S. Thompson and offensive beer names on the company’s labels.

In 1995, Flying Dog released a beer called the Road Dog, a Porter featuring artwork from famed Thompson collaborator Ralph Steadman and a message from the late Gonzo journalist: “Good beer. No shit.” The beer was released in Denver, and the Colorado Liquor Commission quickly labeled the quote as obscenity and ordered the company to remove $250,000 worth of beer from shelves in the state. Flying Dog sued the commission, and the Supreme Court ultimately ruled in their favor.

“For decades, liquor commissioners across the country have taken it upon themselves to reject labels that they don’t like, and it’s a blatant violation of the First Amendment,” Caruso said at Heritage.

The company found itself in another legal battle in 2009 over a beer called Raging Bitch, a Belgian IPA that has been Flying Dog’s No. 1-selling beer since its release that year. The beer was rejected by Michigan’s Liquor Control Commission, which, according to Caruso, used flimsy arguments to defend its decision. Caruso said the board cited Oprah Winfrey’s banning of the word on her show and the Westminster Kennel Club’s decision to drop use of the word for female dogs. The United States Court of Appeals for the Sixth Circuit ultimately ruled in the company’s favor, and Flying Dog settled with the state.

Trevor Burrus, a research fellow with the Cato Institute, described The Slants’ Supreme Court battle as a precedent-setting case, saying that the fundamental doctrine of the First Amendment is “it’s today you, tomorrow me,” noting that all Americans should fight for the free speech of others because of the impact it may have on them one day.

In June, Justice Samuel Alito wrote in the unanimous ruling: “Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way.”