Page 32 - AVN February 2016

CASE STUDY | STOP, THIEF | | By Marc Randazza
|By Nate Glass
A Victory for Speech What the Slants case means for the adult industry
that strengthens
”Any decision
the First
Amendment
strengthens the
adult industry.
The industry
is, for the most
that “Slant” was disparaging to Asians, and denied
them a trademark registration under the despised (by
me, anyhow) Section 2(a) of the trademark act. This is
the section that lets the government deny trademark
protection to a mark that is “immoral,” “scandalous” or
“disparaging.” In this case, the latter.
Why should the adult entertainment industry care?
Because Section 2(a) is most often enforced against adult
entertainment companies. Why? Because petty bureaucrats
don’t usually like this industry, and when people like that
can hide behind an arbitrary concept like “immorality”
to act out their own mental issues, they do. I’m not
suggesting that every 2(a) rejection comes about because
a trademark examiner has issues with sexual expression.
Certainly, some would rather approve the marks, but
they have to answer to someone else. However, I have
part, an
intellectual
seen others who seem rather pleased with themselves
that they get to strike a blow for their particular brand of
conservatism or feminism.
Conditioning an expressive governmental benefit on
property
industry.
one petty bureaucrat’s definition of “morality” is never
legitimate. Nevertheless, this prohibition has stood for
decades—until now. Enter our heroes: The Slants. They
challenged the “disparaging” prohibition and lost, and lost
again, but they finally brought their fight to the United
States Court of Appeals for the Federal Circuit, where they
prevailed.
Enter the First Amendment Lawyers’ Association
The Federal Circuit determined that the statute’s
prohibition on “disparaging” trademarks could not
survive a First Amendment challenge. In doing so, the
court received assistance from a “friend of the court”
brief filed by the First Amendment Lawyers Association
(“FALA”), a group of First Amendment lawyers who
have, for many years, upheld and defended the rights of
adult entertainment companies. FALA’s brief took on the
“immoral” and “scandalous” clause.
FALA’s brief as amicus curiae had three main
arguments. First, it argued that Section 2(a) is an
unconstitutional viewpoint-based restriction on speech.
Generally, the government cannot restrict speech based on
its content without passing an extremely high bar known
as “strict scrutiny,” and a regulation that discriminates
on the speaker’s viewpoint is even less likely to be
constitutional.
Because Section 2(a) allows the Trademark Office to
refuse a trademark registration based entirely on the
content of the mark, FALA argued, it is a content-based
restriction. And under the “unconstitutional conditions”
doctrine, the government cannot premise a government-
granted benefit on the conditions that the beneficiary
give up a constitutional right. Section 2(a) is thus a First
Amendment violation even though it allows the trademark
owner to continue using the mark because the federal
government withholds the significant benefits of trademark
registration based on the content of speech.
Moving on to the government’s possible justifications
LEGAL NEWS
Marc J. Randazza is a Las Vegas-based First
Amendment lawyer who frequently writes on First
Amendment and intellectual property issues. His
LL.M thesis on “Freedom of Expression and
Morality-Based Impediments to the Enforcement
of Intellectual Property Rights” expands on this
article. Download at Papers.ssrn.com/sol3/papers.
cfm?abstract_id=2716892.
The adult entertainment industry is no stranger to legal efforts
to suppress speech with no greater justification than someone
else’s definition of “morality.” In turn, the industry has always
pulled much more than its weight in the fight to protect the First
Amendment. Time and again, adult entertainment companies take
up the fight to protect our most cherished freedoms. Recently,
five proud Asian-American kids took up a very important First
Amendment fight, allied with the adult entertainment industry, and
in the end, may have given the industry a huge gift.
Enter the Slants
The Slants are five Asian-American musicians from Portland,
Oregon, who pay homage to the ’80s on stage—and homage to
their heritage in an ironic way. “We want to take on stereotypes
that people have about us, like the slanted eyes, and own them,”
said Simon Shiao Tam, the band’s front man. In other words,
the group adopted the Lenny Bruce philosophy of repeating an
insulting term until it doesn’t mean anything anymore. To the
Slants, “slant” isn’t an insult, it is empowering. Unfortunately, a
petty bureaucrat at the U.S. Patent and Trademark Office decided
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