Yesterday I was privileged and awed to attend oral argument in Simon Tam’s quest to register the trademark for his band, The Slants. Listening to great minds debate the First Amendment is powerful and inspiring in the way that few things are.
I arrived at 6:00 a.m. and was #2 in the line for attorneys admitted to the U.S. Supreme Court bar. Within minutes we were joined by three more attorneys who, unsurprisingly, were the attorneys for the Redskins.
Oral argument was spirited, probing, and intense. Justice Kagan asked Assistant Solicitor General Malcolm L. Stewart to explain why the statute prohibiting The Slants from getting a registration is not just flat out impermissible viewpoint discrimination. Justice Breyer pressed Mr. Stewart relentlessly to explain how the purpose of the trademark law is advanced by prohibiting registration of disparaging trademarks. Justice Ginsburg was troubled that the Trademark Office appeared to be so arbitrary, letting some disparaging trademarks to be registered, while denying others.
When Mr. Tam’s attorney took his turn, the Justices probed the upper limits of what should be granted a registration.
We can’t know how the Court will rule based the questions that were asked and how the argument went, but we can take heart that our rights and freedoms are a matter of utmost importance to the Court. If I were on the bench, I would strike down the “disparaging” clause as unconstitutional.
How would you rule?