

A win for state-sponsored bigotry

Prejudice increases when the government lends its authority to slurs: Opposing view.

Daniel J. Kornstein
Supreme Court in Washington.

The Supreme Court’s ruling in The Slants case worries me; it looks more like a victory for government-sanctioned bigotry than a win for free speech. The court voided, on free speech grounds, a federal law barring “disparaging” trademarks — using a judicial sledgehammer in a case calling for a judicial scalpel.

Trademark enforcement is a powerful means for businesses to silence expression they view as harmful to their commercial or political interests. The holders of controversial or disparaging trademarks, such as sports teams with Native American symbols, can sue or threaten to sue people who criticize the use of such marks. The result may chill protest.

Nor does the decision take sufficient account of the collateral damage caused by encouraging widespread commercial use of offensive and derogatory marks. Racial and ethnic slurs lead to harmful prejudice against minority groups.


A resounding victory for free speech: Our view

Prejudice increases when the government lends its authority to those slurs. A trademark is a monopoly granted by the government. A disparaging trademark puts the imprimatur of government on a racial or ethnic slur.



The Supreme Court should have considered a narrower holding. It could have set criteria for “reclaiming slants” without throwing out the disparagement statute. It should have more carefully balanced the interests of free speech with the strong public policy against prejudice and discrimination.

Daniel J. Kornstein is a lawyer in Manhattan who submitted a friend of the court brief in The Slants case for Asian Americans Advancing Justice.