The United States Constitution affords all citizens the right to express their beliefs and ideas without any government intervention or interference. This law allows The Slants to use any name that they so wish. However, this right is dependent upon the fulfillment of other codified laws in the United States. Section 2 of the Lanham Act provides for trademarks that are registrable on principle register. The Act prohibits the registration of marks that may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” 15 U.S.C. § 1052(a).
The Miller test which is a three pong obscenity test is usually applied by the Supreme Court to determine whether certain expressions or speech are obscene and therefore not protected under the First Amendment (Miller, 2016). To determine obscenity, the court should determine whether an average person would find that the work appeals to excessive sexual interests or matters, whether the work alludes to sexual conduct in an offensive manner and whether the work lacks scientific, political, literary or artistic value (Tunick, 2014).
In addition, under The United States Obscenity Law, the government is mandated to regulate or suppress activities or works that it considers to be obscene. The test or standard of obscenity is based on the Millers test which limits the sale, personal use, transport or other transmission of obscenity.
Based on the legal provisions and principles set out, the government had no legal standing to deny The Slants the registration of the mark. The governments obligation relates to the sale, transport for personal use and other transmission of work that is considered obscene (Miller, 2016). If the Miller’s test was applied to The Slants supposed trademark, then it would not be termed as obscene or with any sexual interests. The fact that a portion of the Asian community would find the mark offensive should not hinder The Slants from exercising their freedom of speech under the First Amendment (Miller, 2016).
The courts are mandated to apply strict scrutiny as a form of judicial review to determine whether the constitutional rights of citizens should be maintained and upheld, or the government’s interest in a matter should be maintained. The rule is only applied by the courts when there is an infringement of a fundamental constitutional right or when the classifications made by the government apply to suspect classifications of national origin or race (Miller, 2016). This case involved the suspect classification of the Indian race by the government officials who concluded that a mark would be offensive to the whole Indian population, an action which directly infringed on The Slants First Amendment rights.
Finally, the government was also incorrect in denying the registration of the trademark because it is only mandated to do so if there is the threat of sale, transport for personal use or other transmission of obscene material (Brody & Johnson, 2004). This may be termed as commercial speech or a speech done on behalf of a company, or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product.” The Slants main aim of registering the mark was to “reclaim” and “take ownership of” a hurtful epithet, challenge racial stereotypes and inspire meaningful discussion. Hence, based on the legal provisions and principles, the government had not right to infringe upon the First Amendment rights of the band (Brody & Johnson, 2004).
References
Brody, S. G., & Johnson, B. E. (2004). Advertising and Commercial Speech: A First Amendment Guide. New York: Practising Law Institute.
Miller, R. L. (2016). Business Law Today, Standard: Text & Summarized Cases. Boston: Cengage Learning.
Tunick, M. (2014). Balancing Privacy and Free Speech. London: Routledge.
