In recent days, following a Federal Circuit ruling in one disparaging marks case (“the Slants”) and briefing in another (“Redskins”), civil libertarians and artists have joined forces to cry that the applicable provision in federal trademark law suppresses speech. But does it? In this post, we wish to suggest that the ban on registering disparaging marks not only does not suppress any high value speech, but might actually enhance freedom of expression.
Strong First Amendment regimes are valuable when political, social, or artistic creativity is endangered by direct regulation. Weaker First Amendment regimes are more sensible when a complicated mix of government objectives and expressive risks is at stake. In our view, whatever doctrinal tools are ultimately used (e.g., government speech or commercial speech), a weak role for the First Amendment is most sensible in this area.
We begin with the observation that trademarks are expressive in a specific but limited commercial sense: they are distinctive words, names, or symbols used to designate the source of a good or service and distinguish it from others in the marketplace. Most marks by themselves are not coherent enough to constitute political or social expression. Occasionally, one comes across a symbol that might have artistic value, but even then its contribution to public debate on matters of public importance is likely to be extremely limited. Thus, regulation of brand names does not implicate the core of the First Amendment.
Then, there is the most obvious point: denial of registration does nothing to prevent the owner of a mark from using that mark. We have already detailed the ways in which the registration framework does not actually suppress speech. Beyond the fact that the Lanham Act does not inhibit speech directly, however, it also contemplates a federalist structure that helps to promote free speech. Federal law does not create trademark rights, but merely seeks to streamline this area of law by building new federal remedies on the edifice of state law. As the Supreme Court explained in the Trade-Mark Cases, “This exclusive right was not created by the act of Congress, and does not now depend upon it for its enforcement.” Because federal law did not preempt state trademark law, the absence of Lanham Act remedies does not extinguish state law claims.
When no federal registration exists, a trademark owner can sue an alleged infringer in the jurisdiction where the mark is used and where the infringement occurred. It is said that under the common law, one cannot protect a trademark that violates public policy. But it would be up to each state to determine whether certain kinds of marks contravene that state’s established public policy. Maine, for instance, apparently has no trouble with disparaging marks, barring only marks that are “obscene, contemptuous, profane or prejudicial… [or i]nappropriately promotes abusive or unlawful activity.”
Most states have adopted the model trademark bill patterned on the Lanham Act. This is true in California, which also prohibits the registration of immoral, scandalous, and disparaging marks. A trademark owner such the Slants can argue that the mark is not disparaging under California law. Even with identical statutory provisions, different outcomes in different jurisdictions are possible. State law may base determinations on local perceptions of the mark, which may deviate from national views, and may develop different doctrines such as taking into account the mark owner’s intent to re-appropriate slurs. Thus it is conceivable that states may reach a different conclusion about the same mark.
Does refusal to register raise the costs of enforcement? It might very well do so, but such differences in enforcement regimes has never been enough to raise constitutional difficulties, especially in a federal system of laws that includes many built-in inefficiencies.
These inherent inefficiencies could actually enhance liberty better in the long run than a First Amendment dominated system. Some states would surely follow the federal government’s lead by broadly disallowing registration/enforcement of certain slurs as trademarks. They would prefer to withdraw the state’s imprimatur from illiberal ideas and hope to discourage their use. The fact that copycats and counterfeiters might make widespread use of the same design or logo, perhaps even to coopt the ideas for benevolent goals, would be taken as evidence of healthy public discourse.
On the other hand, other states might see value in granting legal protection to certain taboo ideas disallowed by the federal government, by finding that particular terms are not offensive to local communities. Or perhaps states might do so on the theory that legal protection of coopted epithets promotes dissent within ethnic communities. Madhavi Sunder has made just this kind of argument, but the rationale does not depend on a nationwide rule. States themselves could decide to strike its own path on how to determine when a mark “disparages.”
The key to a system characterized by a weak First Amendment is that no jurisdiction—neither federal nor state—has the obligation to reject or endorse disparaging marks. Rather, the government’s power to ensure broad participation in the marketplace and guard against illiberal business practices are treated as just as important as an individual right to expression. It is worth remembering that even in a weak First Amendment regime, the Constitution would still remain powerfully available in the background, protecting against direct efforts to stamp out disparaging ideas.
This more nuanced approach that can only flourish if the First Amendment is not deployed in a one-size-fits-all manner requiring government to protect whatever a trademark applicant demands. If the strong First Amendment position prevails, then state and federal restrictions on trademark content would be swept aside, across the board. By operation of the Fourteenth Amendment, every level of government would have to endorse and subsidize morally repugnant marks.
The people of each state would no longer be allowed to determine public policy in this domain or to express their view that certain commercial practices are illiberal. In such a world, free speech principles might reign nationally in trademark law, but one should wonder whether they would really promote robust debate.
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