Government Regulation of Hate Speech After Matal v. Tam

It is not often that an appeal from the refusal of the PTO to allow registration of trademark captures national attention, but the recent Supreme Court case decided under the name Matal v. Tam, involving registration of the trademark 'THE SLANTS' for an Asian-American rock band, did just that. The case, which raised the question of whether the First Amendment permits the government to refuse registration of "disparaging" trademarks, garnered extra attention because of the roughly parallel course of an appeal by the Washington Redskins, who were appealing the cancellation of their REDSKINS trademark registration by the PTO on the ground that it was disparaging to Native Americans.

In June 2017, the Supreme Court held that the disparagement bar of Section 2(a) of the Lanham Act constituted unconstitutional viewpoint discrimination under the free speech clause of the First Amendment, affirming a December 2015 ruling by U.S. Court of Appeals for the Federal Circuit. The Court, like the court of appeals before it, rejected the PTO's argument that trademark registration is either "government speech," an "endorsement" of a trademark's message or otherwise subject to regulation as a government-sponsored "program." As a result, the PTO published THE SLANTS for opposition at the end of July and the REDSKINS mark was saved from cancellation. Meanwhile a backlog of other previously unregistrable marks are being processed by the PTO.

The unanimous decision in Matal v. Tam is widely seen as a statement by the court, across the ideological spectrum, of the role of government in regulating offensive or "hate speech." This program, taught by Archer & Greiner Partners John C. Connell and Ronald D. Coleman, will discuss the constitutional issues addressed by the court, the questions it pointedly left on the table and the possible implications for other parts of the Lanham Act, as well other statutes.

Learning Objectives:

1. Review the background of Matal v. Tam and the Redskins case, including the PTO's previous decisions on disparaging trademarks
2. Discuss the First Amendment analysis behind the Supreme Court decision
3. Consider how this will impact future challenges to government regulation of offensive speech, both in and out of the Intellectual Property context