WASHINGTON (Reuters) - An Asian-American band called The Slants urged a U.S. appeals court on Friday to strike down part of a federal law that has prevented it from trademarking its name, arguing that offensive speech or ethnic slurs cannot be censored by the government.
Facing a deeply divided full slate of 12 judges on the U.S. Court of Appeals for the Federal Circuit, the band’s lawyer Ronald Coleman said the First Amendment of the U.S. Constitution “requires all speech, no matter how offensive, not be restricted or gate-kept in any way.”
Federal law prohibits the registration of trademarks which may be considered disparaging.
The Portland, Oregon-based band, which plays a kind of music it calls “Chinatown dance rock,” is appealing because it has been rejected twice for a trademark by the U.S. Patent and Trademark Office on the grounds that it disparages Asians.
Interest in the case is high because it could affect a more high-profile appeal involving the National Football League’s Washington Redskins, whose trademarks the government agency canceled last year after deciding they disparage Native Americans.
In the Slants’ case, supported by the American Civil Liberties Union, front man Simon Tam said the band adopted the name as a way to reclaim the racial slur.
On Friday he told Reuters that while most people today believe “Redskins” is offensive, few Asian Americans believe “Slants” is.
In April, a three-judge Federal Circuit panel upheld the agency’s rejection, but the court then vacated that decision in order to tackle the prickly constitutional question.
The judges on Friday appeared evenly split. Several appeared skeptical of the agency policing what is considered offensive.
Circuit Judge Kimberly Moore asked what would happen if the government began rejecting copyrights for controversial art or other expressive works, as it is doing with trademarks.
Would there be “no more porn? No more crucifixes in urine?” she asked, referring to an infamous 1987 photograph known as Piss Christ.
The federal government is trying to maintain the agency’s power to reject certain trademarks, saying it is not required to actively help those who would use racial epithets and disparaging images in the marketplace.
Daniel Tenny, an attorney with the U.S. Department of Justice, told the judges that the law governing trademark registrations does not violate the First Amendment. Its purpose is not “to help people to make a political statement or prevent people from making political statements,” he said.
Reporting by Andrew Chung; Editing by Alexia Garamfalvi and Bill Rigby