Sunday, July 2, 2017

Inside Asian-American Group the Slants' Supreme Court Free-Speech Win

Inside Asian-American Group the Slants' Supreme Court Free-Speech Win:

Inside Asian-American Group the Slants' Supreme Court Free-Speech Win

Five months ago, Simon Tam sat anxiously in a Supreme Court hearing that would determine the fate of his band's name. He wasn't allowed to testify or argue his case, and he wasn't even allowed to sit near his own attorney, who answered a firing squad of questions from the justices. "The court has lots of traditions," Tam tells Rolling Stone a few months later. "I guess it's rare for people, the petitioners, to actually show up." Nevertheless, he wanted to witness what happened, since it would affect the livelihood of his band.

A little over a decade ago, the Portland, Oregon resident named his synth-pop group the Slants. The lineup is entirely Asian-American, and the name is a racist slur for Asians. His intention was to put a new spin on the word – which, he jokes, sounds old-fashioned as far as disparaging references go. He wanted it to be empowering. After crossing paths with two other bands dubbed the Slants, in Colorado and Arizona, he decided it was in his best legal interest to trademark the moniker with the federal government, as it would establish the band as a brand and give it legal protection against other groups that attempted to use the name; with a trademark, his group would have precedence. But the U.S. Patent and Trademark Office (PTO) declined his registration, citing a decades-old law, called the Lanham Act, that allowed it to deny marks considered "scandalous, immoral or disparaging." So Tam, who uses the professional name Simon Young, took on the government in a seven-year free-speech court battle that eventually brought him before the Supreme Court. On Monday, it was announced he won his case.

In a unanimous ruling, the eight justices (Neil Gorsuch recused himself as he was confirmed after arguments were presented) determined that the law the PTO had cited was unconstitutional. "It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend," Justice Samuel Alito wrote in the court's ruling.

Now Tam, who's seen his argument travel up through the appellate courts for years, is celebrating. "After an excruciating legal battle that has spanned nearly eight years, we're beyond humbled and thrilled to have won this case at the Supreme Court," he said in a statement. "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."

"I see it as more of a social justice, ethical case," says Simon Tam. "What are the impacts on marginalized communities?"
Still, the ruling may extend far beyond the bassist's intentions, as lawyers for the NFL's Washington Redskins hope to use the ruling as a precedent to regain the team's trademark. In 2014, the PTO canceled six of the team's trademarks after receiving pushback from Native American activists. Tam, who does not support the Redskins' lawsuit, says it's just smoke and mirrors. "The government brags about canceling the football team's registration for Redskins, but what they don't tell you is they issued another new one in 2013 for a snack company called My Dadz Nutz," Tam says, referring to a product called "Caramelized Jumbo Redskins." "Most people would agree the term is offensive to Native Americans, yet you insult them by issuing it out again to somebody else?"

Tam spoke with Rolling Stone at length in January about the ruling, which was still pending at the time, as well as its implications. A representative for the PTO said that the office does not comment on cases. A publicist for the Redskins did not reply to a request for comment, though one of its lawyers commented to The New York Times that the ruling "resolves the Redskins' longstanding dispute with the government." And Redskins owner Dan Snyder released a statement: “I am THRILLED! Hail to the Redskins.”

To Tam, it's more than a trademark case. The heart of why he's fought so hard for this ruling is to give a voice to communities who don't often get a say for themselves. "I see it as more of a social justice, ethical case," he says. "What are the impacts on marginalized communities? And when I look and see a law that's using people's identities against them, like when the government uses race, sexuality, gender as a factor to deny them rights. I felt that was a burden on already burdened communities that had the short end of the stick for the last several centuries.


"When I thought more deeply where those decisions should be made, I wanted them to be made in our own communities rather than be left to the government, which oftentimes gets it wrong," he continues. "So I don't see it as directly a trademark case or a free speech case. I think of it more as social equity and social justice."

The band's genesis came to Tam after seeing a scene in Kill Bill, where a Yakuza gang named Crazy 88 accompany Lucy Liu's character into a restaurant to a typically Tarantino soundtrack. Something about the badassedness of it all struck him. "I realized it was the first time I had ever seen an American-produced film that showed people who looked like me in that way: we could be cool, confident, sexy," he says. "I started thinking about the music industry at the time, which was before YouTube and the Far East Movement, and how even though there are 17 million Asian-Americans, you don't see us on the covers of Rolling Stone or Spin. You don't see us on the Billboard charts. There was almost nobody other than, like, James Iha of Smashing Pumpkins, as far as Asians being out there. So I wanted to start a band like, 'Maybe we can shake things up a bit and show that we can look like us, we can still be every bit as American as these other groups.'"

Tam chose the band name the Slants after a conversation with some of his non-Asian friends. "I started asking, 'What's something you think all Asians have in common?'" he says. "They would immediately say 'slanted eyes.' I thought, 'That's interesting because it's not true.' It's not a feature that's exclusive to Asians and certainly not all Asians have slanted eyes. Then I was thinking it could also refer to our slant on life or our perspective on what it's like to be people of color while at the same time re-appropriating this outdated and obscure slur that people have long used against my community. It's something that Asian-American activists have been doing for decades, so it as to honor their legacy and work."

"They said our name was disparaging, but we were working within our communities all throughout the country"
At the time, Tam spoke with a friend who was an editor at the New American Oxford Dictionary who did research on the slur, and the friend found that it was obscure even by the time of World War II. "Let's just say there are many more preferred slurs to use against Asian-Americans," Tam says. The archaic quality of it appealed to him.

Following an 18-month tour across the U.S. where they played every Asian-American festival they could find, he applied for a trademark on the advice of an attorney. By his estimation, the name was a success. The Slants had been featured on several Asian-American web sites and found no pushback while touring; no booking agents canceled their concerts and people weren't tweeting or writing angry, dismissive things.

The band's only previous trouble came in 2009 over their ethnicity, when a major label A&R rep said they would only get a deal if they replaced their singer with a Caucasian. The Slants declined the offer and decided to exist independently and attempt to trademark the name.

"For a lot of bands, you can't get a record-label deal or a sync-licensing deal unless you have a registered trademark," Tam says. "A lot of record labels tell bands to change their name if they can't get a trademark registration. Probably the most famous example is Destiny's Child, who used to be called Destiny. It's pretty common for groups to do."

Then the PTO rejected them. "They said our name was disparaging, but we were working within our communities all throughout the country," he says. "How did they even come to this conclusion?"

That's when Tam's legal battle began.

The Band Who Must Not Be Named
"They said our name was disparaging, but we were working within our communities all throughout the country," Tam says. "How did they even come to this conclusion?" Sarah Giffrow

Initially, his family was skeptical about supporting him. His father had escaped China as a political refugee. "He thought I would be arrested, that the government was going to punish me or take me away for challenging them," he says. "He'd seen members of our own family put in camps. But once I explained that it was very public at that point, they have become supportive. They experience pretty significant racism and they realize there's something inherently wrong about what's happening to me, and they want to be supportive of it. I think they worry more about the toll it's taken on me and the legal fees that have piled up."

Despite the fact that Tam's lawyer was working for him pro-bono for the previous six years, the bassist has had to cover a number of unexpected costs out of pocket. He estimates he's spent tens of thousands of dollars overall, including the $300-$600 cost every time one responds to the trademark office. "Nobody starts a band wanting to go to court and wanting to spend all of this money and time in the legal process," he says. "But I felt it was really important to shine a light on this law and show how the government is using people's identities against them."

Tam says his family jokes that he works five jobs to pay for the lawsuit, but he says the reality is "closer to 10." He's the marketing director for a non-profit in Portland; he teaches adjunct at three colleges; he does course design for colleges and universities; he offers consulting on diversity and inclusion programming for the city and state; he makes speeches and writes and he's helped to open a restaurant with his sister. "Most of it is because I enjoy it," he says. "I love teaching. I love doing things I believe are fulfilling to my values, but also because, yeah, I have substantial legal fees – probably more than the average person."

The broad nature and seeming inconsistency with which the PTO administers marks helped make the lawsuit so time-consuming. When the office rejected Tam, it used bizarre evidence as grounds, citing, in part, the user-generated slang lexicon Urban Dictionary. It also claimed that a Slants concert had been canceled over the band name, citing an unverified blog, but the band had, in fact, played the gig.


Meanwhile, it had granted the rap group N.W.A, whose name contains the N-word, a mark in 2000 but denied Damon Wayans the use of the slur for a clothing line he was starting five years later, according to The Hollywood Reporter. "In once sense, people justify it by saying, N.W.A is an acronym so it's acceptable," Tam says. "However the trademark office should be asking what is the meaning of the mark. In that sense, it is unquestionable what N.W.A stands for and what their message stands for. ... And then there's Uncle Kracker and Jeff Foxworthy has so many registrations for 'redneck' it's ridiculous."

For years, Tam thought the solution should be a "culturally competent" alternative to the PTO that examined the context and intention of a trademark. Then he realized that someone with good intentions could sell a mark to a person or organization with evil ones. "Intention and context are very hard to judge to begin with, but they're even harder to regulate," he says. "The other thing is that certain phrases become disfavorable over time, because that's how language works. The same law that is denying our registration also endangers organizations like the NAACP, since 'colored people' is disfavorable now. Yet no one would argue that the NAACP is a great organization for advocating for black and African-American citizens."

It's a sentiment Justice Anthony Kennedy echoed in his written statement about the ruling. "The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate," he wrote. "That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. To permit viewpoint discrimination in this context is to permit Government censorship."

That said, Tam feels the Redskins are entitled to a mark – but only because of the Constitution. "From an ethical perspective, I don't think they deserve anything," Tam says. "From a business perspective, they have done everything that would allow one to have a trademark. But I think Native Americans are entitled to reparations, perhaps funded by the football team."

Aside from social justice, Tam was fascinated by what he saw at the Supreme Court hearing this past January. By the time it was done, he felt the justices were leaning in his favor. When the government's petitioner presented its case, the justices were highly skeptical. If someone is able to copyright racist and sexiest books and movies, why would they not be able to get a trademark? Also, at one point the government's attorney said that the office is bound to make mistakes because of the volume of requests it receives. "He was basically justifying government inefficiency and viewpoint discrimination by saying the law was too vague," Tam recalls.

The Band Who Must Not Be Named
The group's recently released EP has "a few nods" to the PTO on it.

The justices also tried to find out just how far a term would have to go before the government called it offensive. At one point, Justice Ruth Bader Ginsburg posited, "Suppose the application here had been for 'Slants Are Superior' – so that's a complimentary term. Would that take it outside the disparagement bar?"

The government's lawyer replied, "I think that under the PTO's historical practice, probably not. I think the same thing would be true of other racial epithets; terms that have long been used as slurs for a particular minority group."

"Why isn't that disparaging of everyone else?" Justice John Roberts inquired. "'Slants Are Superior,' well, superior to whom?" The government's attorney sputtered a reply, trying to return focus to the idea that the band's name was just "Slants." To Tam, it was the government trying to justify viewpoint discrimination – honoring favorable statements that may be discriminatory over those that are unfavorable.

Testing the other side of the coin, during Tam's lawyer's arguments, Justice Anthony Kennedy set forth a patently offensive hypothetical. "[Suppose a case where] the facts are largely parallel to these, other than the band are non-Asians, they use makeup to exaggerate slanted eyes, and they make fun of Asians," he said. "Could the government, under a properly drawn statute, decline to register that as a trademark in your view?" The attorney replied, "They could not."

"It was thrilling," Tam says. "Even though it was really weird hearing them make these really outlandish arguments and having it loosely based on my case. But with the Supreme Court, you're arguing about very big theories about where the Constitution lays and where the law lays. Our case is the basic framework, and they were trying to figure out much more complex and challenging situations."

"I would never wish this upon anybody. It's strange and infuriating and frustrating and it saps the creative energy dry sometimes."
Now that the case has ended, the bassist is excited to shift his focus back on the band's music. The group recently released an EP, The Band Who Must Not Be Named. He promises it has "a few nods" to the PTO in its songs. He also hope to have some time to focus on songwriting again.

"I would never wish this upon anybody," he says. "It's strange and infuriating and frustrating and it saps the creative energy dry sometimes. After we got out of the federal circuit, I wanted to stop being reactive; stop being a victim of the government. We wanted to funnel that energy into something else. So that's why we wrote new songs and used that message and wrote about what we were experiencing, and that's how we came up with the songs that ended upon the EP."

The whole experience has changed who Tam is on a fundamental level. "When I started this band, it was about creating a bold portrayal of Asian American culture," Tam said in his statement following the news of the court's decision. "The establishment of an Asian-American band was a political act in of itself, even though we never considered ourselves as a political group. However, as we continued writing music about our experiences, we realized that activism would be integrated into our art as well. I'm proud our band members have helped raise over $1 million for issues affecting Asian Americans, that we've worked with dozens of social justice organizations, and that we could humanize important issues around identity and speech in new and nuanced ways.

"So we became part art and part activism," he continued. "There will always be villainous characters in a free society but we cannot be so blinded in our desire to punish them that we are willing to bear the cost of that cost on the backs of the marginalized."

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