Preventing Tam's "Proudest Boast" from Protecting the Proud Boys: A Response to Free Speech Absolutism in Trademark Law
Recent events, including the infamous Unite the Right rally in Charlottesville in 2017 and the attack on the U.S. Capitol on January 6, 2021, have brought the First Amendment, hate speech, and the resurgence of white nationalist rhetoric into the public eye. Throughout the twentieth and twenty-first centuries, while much of the Western World and the United Nations worked to restrict hate speech, the U.S. Supreme Court increasingly expanded protections for speech and expression under the First Amendment and narrowed the exceptions under which speech is not protected. In particular, under the near-absolutist interpretation of the First Amendment, hate speech is protected unless it falls within the exceedingly narrow exceptions to First Amendment protection, such as the “fighting words” or “incitement to imminent violence” exceptions. Critics of the absolutist approach and the protection it affords hateful and racist speech argue that this approach to the First Amendment is inconsistent with, and in fact denies to minorities, other constitutional guarantees, namely the Fourteenth Amendment right to equal protection.
Through an exploration of the evolution of the absolutist interpretation of the First Amendment, this Comment joins that argument and seeks to further examine the place of hate speech in First Amendment jurisprudence within the context of federal trademark law, particularly through Matal v. Tam. In Tam, the landmark trademark case in which the Supreme Court struck down the disparagement clause of the Lanham Act as violative of the First Amendment, the Court furthered its current absolutist interpretation of the First Amendment and firmly stated that the “proudest boast” of the First Amendment is protection for the thought that we hate. In the context of Tam, this meant that Simon Tam’s Asian American band The Slants—which, in choosing that name, engaged in reappropriation of the traditionally disparaging term “slant”—could obtain the federal trademark registration for a band name that it had been denied under the disparagement clause. However, under Tam’s holding and the holding of its companion case, Iancu v. Brunetti, others with intentions less pure and tolerant than reappropriation may now also obtain federal trademark registrations for and profit from the most hateful and offensive marks.
This Comment proposes a solution—an anti-hate speech amendment to the Lanham Act—to the double-edged sword created by Tam and Brunetti. Under this solution, marks that would constitute hate speech would be presumptively barred from registration. However, the amendment would also include a reappropriation exception by which applicants could obtain registration of an otherwise hateful or disparaging mark by successfully demonstrating that they are using the mark to engage in reappropriation to reclaim the disparaging mark and empower their community.
Katherine K. Carey,
Preventing Tam's "Proudest Boast" from Protecting the Proud Boys: A Response to Free Speech Absolutism in Trademark Law,
Emory L. J.
Available at: https://scholarlycommons.law.emory.edu/elj/vol71/iss3/4