After a long blogging hiatus, I’m back with a review* of an amicus brief filed in Lee v. Tam, currently pending before the Supreme Court.
A brief background of the case: The Lanham Act, which governs federal trademarks, prohibits registration of any mark that “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.” 15 U.S.C. 1052(a).
Simon Shiao Tam and his bandmates were denied a federal trademark registration for their band, The Slants. The United States Patent and Trademark Office’s denial of the registration application was based on its finding that The Slants’ name is disparaging to Asian-Americans. The Federal Circuit Court of Appeals held that the PTO’s refusal to register disparaging marks, including The Slants, is unconstitutional viewpoint discrimination. The Supreme Court granted cert, and the case will be argued on January 18, 2017.
Photo by Gage Skidmore
The Cato Institute filed an amicus brief on behalf of a group that describe themselves as a “basket of deplorable people and organizations.” This entertaining description makes sense in light of the amici’s interest in the case:
Amici are committed to preserving free expression and pushing people out of their comfort zones. This case concerns amici because we all say things that some people find offensive or even disparaging—but it’s not the government’s role to make that judgment.
The deplorables brief, authored by Ilya Shapiro and Thomas Berry, reads like an op-ed. The authors’ conversational style (in the vein of Justice Kagan?) makes the brief eminently readable. Below I highlight a few of the (many) parts of this brief that I like and find interesting and effective.**
The Question Presented
I love the straightforwardness and simplicity of the Question Presented:
Does the government get to decide what’s a slur?
While parties can’t get away with a one-sentence QP that fails to provide the relevant law, amici can. Compare the amici’s QP with Tam’s, which is straightforward as well (though a little more detailed):
The disparagement clause in section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), prohibits the registration of a trademark that “may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The Questions Presented are:
1. Whether the disparagement clause bars the registration of respondent’s trademark.
2. Whether the disparagement clause is contrary to the First Amendment.
3. Whether the disparagement clause is unconstitutionally vague under the First and Fifth Amendments.
The deplorables’ eclectic list of authorities includes (in no particular order):
Plessy v. Ferguson, 408 U.S. 593 (1972)
Seinfeld, The Yada Yada
Dred Scott v. Sandford, 60 U.S. 393 (1856)
Chris Rock, Rock This
Barack Obama Speech on Father’s Day, June 15, 2008
Jim Goad, The Redneck Manifesto (1997)
South Park, With Apologies to Jesse Jackson
N.W.A., Straight Outta Compton
Elizabeth Wurtzel, Bitch: In Praise of Difficult Women (1998)
The deplorables don’t feel constrained by traditional legal sources; certainly they cite relevant case law, but considering the breadth and distinctiveness of some authorities cited, we see the authors’ point that the disparagement clause’s prohibition affects Americans of many different races, genders, and heritages.
The use of images in briefs is currently in vogue (to the extent that anything in law can be considered in vogue), and the authors of the deplorables brief don’t disappoint, using an image of Flying Dog Brewery’s Raging Bitch Belgian-Style IPA to demonstrate the long history of legal disputes over “edgy” brand names.
Those interested in legal writing continue to debate the use of contractions in motions and briefs. Some, like me, eschew them, while others believe they’re acceptable when used sparingly and purposefully. The drafters of the depolorables brief are in the latter group; the brief is full of contractions, many of which make the writing pop:
The PTO has inserted itself into a cultural debate. It’s no secret that for centuries, people have used language to ridicule and debase.
From its very beginnings, rock music has made parents uncomfortable, school teachers cringe, and officials riled up. It wouldn’t be rock music if it didn’t.
Rather than promoting an offense-free marketplace, the goal of the trademark system is quite simple: for people to know what they’re buying.
Brief writers sometimes use lengthy introductory phrases that detract from rather than support their arguments. Shapiro and Berry chose short openings to help them get to their points quickly:
But the suppression of political speech is not the only problem arising from the disparagement clause.
Of course many in the African-American community continue to disagree with comedians’ decision to use racial epithets.
And as the Federal Circuit pointed out, “the PTO [has] admitted that ‘[t]he guidelines for determining whether a mark is scandalous or disparaging are somewhat vague and the determination of whether a mark is scandalous or disparaging is necessarily a highly subjective one.’”
Once again, the PTO would have us believe that although linguists, historians, and pundits disagree, everyone who works at 600 Dulany Street in Alexandria magically acquires the power to settle these debates.
Some cool, little-used words
Generally, a brief isn’t the place to show off a large vocabulary. In my opinion, the use of too many $10 words smacks of grandiloquence. But a few carefully placed gems, like these in the deplorables brief, can spice up prose:
The Slants have chosen a name that, through its insouciance, expresses something about their music—and the government’s jejune label of “disparaging” fails to capture the many levels of communication inherent in that name.
For several reasons, we are less sanguine that such a neutral and objective arbiter of true disparagement can be found anywhere, let alone in the federal government.
Short, punchy sentences
Short sentences provide a nice contrast to longer, dense ones. The authors use short sentences sparingly but effectively:
It gets complicated. And that’s the point. The disparagement clause places an unconstitutional condition on those who consider the use of an edgy or taboo phrase to be part of their brand.
Perhaps the NAACP is right that the term colored is “outdated and antiquated but not offensive.” But this raises the question: At what point between 1910 and the present would the PTO have ceased granting registration to marks using “colored”? Once again, there is no clear answer.
These asides would be too cutesy for the parties’ briefs, but they work in the folksy deplorables brief.
Indeed, under the government’s own proposed rule, any service that Congress or a local legislature is “not obligated to provide”—which is literally the case for every service19—could be selectively withheld on the basis of speech.
19 Actual, non-Biden sense of the word “literally.” See, e.g., Alexandra Petri, Literally, Joe Biden, Wash. Post, Sept. 7, 2012, http://wapo.st/2hpA521
In the 1970s, both Stanford and Dartmouth voluntarily changed their mascots from the “Indians” to the (difficult-to-make-into-a-costume) incorporeal colors “Cardinal” and “Big Green,” respectively.
Amici, and all others who sometimes find themselves lumped into a basket of deplorables—now that’s a great band name!—urge the Court to let people judge for themselves what’s derogatory.
Interested in reading the deplorables brief for yourself? You can find it here.
You can find Tam's brief (cited above) here and the other briefs and coverage of the case over at SCOTUSblog.
Note: Overlawyered’s Water Olsen describes the deplorables brief as perhaps the “most not-safe-for-work amicus brief in Supreme Court history.” The brief is full of obscene language, so view at your own risk!
* Occasionally I “review” briefs from high-profile cases, but I use the term “review” loosely. I rarely highlight areas of potential improvement (to the extent there are any), instead focusing on the parts of briefs that I find effective.
**And while we’re talking disparagement, I refer to this brief as the “deplorables brief” throughout the post. I don’t think the amici care about my opinion or would be offended anyway, but just so we’re clear, this description isn’t meant to suggest that I find the amici deplorable.