FAN 157.1 (First Amendment News) Music to their ears — The Slants win in SCOTUS: Commentaries, Podcasts & Interviews

Music is the best way we know how to drive social change: it overcomes social barriers in a way that mob-mentality and fear-based political rhetoric never canSimon Tam

The Slants (credit: Anthony Pidgeon/Redferns, via Associated Press)

A major First Amendment victoryNational ACLU

The far-reaching importance of this case cannot be overstatedNational Law Journal

The opinion: Matal v. Tam (June 19, 2017) (Oral Argument Transcript)

Counsel for RespondentJohn C. Connell

Coursel for PetitionerMalcolm L. Stewart (Deputy Solicitor General)

Briefs Filed in CaseParties & Amici

Video Interview: Extended Interview: The Slants’ Simon Tam (KOIN 6, June 19, 2017)

SCOTUSblog Symposium 

  1. The cacophony of trademarks is not government speech
  2.  Increasing First Amendment scrutiny of trademark law after Matal  v. Tam
  3.  Free speech comes to trademark law
  4. The First Amendment silences trademark
  5.  The Constitution prohibits government’s “happy-talk” requirement for trademark registration

FIRE: So to Speak Podcast 

Cato Podcast: The Michael Berry Show

Rolling Stone Magazine


Constitutional Law Prof Blog

Volokh Conspiracy

Bloomberg View

The Federalist



In A Crowded Theater

This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves.Simon Tam

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4 Responses

  1. Howard Wasserman says:

    Loved the podcast discussion. But I understood the statutory issue differently. This was not Citizens United, with the Court reaching out to address a big constitutional issue for the first time. Here, the Court reached out to address an unpresented statutory issue that would have obviated the constitutional issue. And the Court did it in the name of avoidance. If taken seriously, that is a new and potentially broad power, but for a different reason: The Court was allowing that, through avoidance, statutory issues are fairly presented within a QP about constitutionality.

  2. John Banzhaf says:

    The ruling by the U.S. Supreme Court, that even trademarks which are racially disparaging are protected by the First Amendment, and therefore such trademarks are entitled to federal registration, almost certainly dooms a legal action by Native Americans to cancel several “R*dsk*n” trademarks.
    However, the ruling does not necessarily shield radio and TV broadcasters from legal attacks based upon their repeated and unnecessary use of what many Native Americans refer to as the “R-word” – which they maintain is as racially disparaging to them as the “N-word” is for African Americans – because the Supreme Court has ruled the Federal Communications Commission [FCC] can punish broadcasters which use language which in other situations would be protected by the First Amendment.
    Prof. John Banzhaf has led the movement to use broadcast law as a weapon against the continued use by radio and TV stations of the word “R*dskins” – which many American Indians, and even some legal rulings, have characterized as a very harmful racist slur – because broadcasters are required to operate in the public interest in order to retain their valuable public license.
    The ability to use a name to refer to yourself or your group is very different from the exclusive right to operate a station on a given frequency.
    For example, the Supreme Court has repeatedly said that the FCC may regulate the use of various expletives, including the word “f*ck,” but upheld the right of a man to wear a jacket in public in a courthouse which read “F*ck the Draft.”
    Even when the issue very recently became the extent to which the FCC can regulate what it calls “fleeting expletives” – rude words used only once, and in a completely non-sexual context – the Supreme Court has not undercut this power.
    An initial challenge to r*dsk*ns” upon this ground was rejected by the staff of the FCC, in part because it was not filed in a timely fashion. Moreover, said Banzhaf, any decision limiting broadcaster use of the name of the popular football team would almost certainly have to be made by the FCC’s commissioners, not just by the staff. The Commission has not yet ruled on this issue, noted Banzhaf.
    In the Supreme Court case, musicians of Asian heritage decided to name their music group the “Slants,” ordinarily a disparaging word. However, many would probably agree that it is much less derogatory when the group which voluntarily adopted it is the very group allegedly being disparaged.
    However, the name “R*dsk*in” was not adopted by Native Americans, and it has been found to be a racially disparaging slur by virtually every Native American organization.
    Even so, would the FCC would let a group of African American musicians which named itself the “N*gg*rs” be referred to by that name on the air. Interestingly, broadcasters usually refrained from using the proper name “Niggas With Attitude” by its full name, instead saying NWA.

  3. Joe says:

    The remaining breadth of the rules about limiting expletives and related issues on the airwaves seems like something that will return to the Court eventually.

  4. Nic Carters says:

    Your post has some good insights. Our firm has used many of these legal tactics as well –