Columnist George Will Tackles The “Disparagement Clause”

He says the Supreme Court should strike down the clause in a 1946 law that gives the U.S. Patent and Trademark Office the power to deny protection to “immoral, deceptive or scandalous” trademarks. The issue arises in a case involving “The Slants,” a rock band whose members are Asian-American and whose attempt to trademark their band name was rejected by the PTO. In his column. Will cites an edgy amicus submission from the libertarian Cato Institute, with the title “Brief of the Cato Institute and a Basket of Deplorable People and Organizations.” The argument is that disparaging speech is a hallowed American tradition – the donkey emblem for the Democratic party, for example, is said to be Andrew Jackson’s in-your-face rejoinder to opponents who called him a jackass – and that it can be part of healthy political debate, and that in any case government officials can’t be trusted to sort it out. “The PTO,” Will notes, “has canceled the trademark registrations of entities named Mormon Whiskey, Abort the Republicans, Democrats Shouldn’t Breed, Marriage Is For Fags and many more.” A more recent and better known example of a rejected trademark, also cited by Will, is the Washington Redskins. Some polls, he claims, found that  90 percent of Native Americans weren’t offended by it.