Spics Not Welcome

by Jay Marshall Wolman

By now, you have probably heard that Simon Tam won his case before the Federal Circuit regarding his attempt to register a trademark for his band “The Slants”.  (Disclosure: Randazza Legal Group represented the First Amendment Lawyers’ Association as amicus curiae in that case and was recently co-counsel with Mr. Tam’s lawyers, Ron Coleman and Joel MacMull, on another matter.)  In short, the Federal Circuit Court of Appeals found that the denial of registration under the Lanham Act’s prohibition of the registration of “disparaging” marks did not survive strict or intermediate scrutiny under First Amendment analysis.  I leave it to others to provide an analysis of the holding.

I’m more interested in something that appears on page 9 (page 107 of the PDF) of the dissent of Circuit Judge Reyna.  In it, Judge Reyna (who happens to have been a former president of the Hispanic National Bar Association) offers up the following as a permissive government regulation of disparaging speech:  a restaurant named “SPICS NOT WELCOME”.  Judge Reyna notes that Title VIII of the Civil Rights Act of 1964 bans advertising with a discriminatory preference and discusses how (the better known) Title VII bans harassing speech in the workplace.  He then writes that the government interest in avoiding disparagement, such as that with demographically discriminatory content, outweighs the burdens on speech.

With Judge Reyna in the dissent, something to consider is what would be the implications of a restaurant named “SPICS NOT WELCOME”.  Prof. Eugene Volokh has explored the conflict between First Amendment law and harassment law.  Judge Reyna’s example sets it up nicely.  Let’s assume an entrepreneur named a restaurant “Spics Not Welcome” and registered that trademark.  Let’s also assume that the restaurant does not actually discriminate against persons of Hispanic origin (for the hypothetical, let’s presume the restauranteur hates spices, but has a spelling problem and forgot the “e”).

Presumably, the name would dissuade both potential consumers and job applicants of Hispanic origin and would be deemed to violate the Civil Rights Act under present jurisprudence.  So, on the one hand, you can register and use a disparaging mark under the First Amendment, but on the other, it is prohibited as being discriminatory.  Which one stands?  And, even though the trademark matter was decided on constitutional grounds, that does not mean that the government interest analysis is the same.  Of course, it may be argued that it is the same analysis and down goes harassment law.

If not, can you have a registered trademark you are not allowed to use?  Does trademark law trump civil rights law or vice versa?  Since the Lanham Act predates the Civil Rights Act, perhaps the latter trumps.  I’ll have to look into instances where an offensive mark was deemed unlawful harassment and update this post.

Now, I don’t recommend naming a restaurant “Spics Not Welcome”.  But what if The Slants needs a new drummer–can a non-asian apply?  Would they feel harassed or precluded by the name?  It’ll be interesting to see how the law develops.

 

 

 

5 Responses to Spics Not Welcome

  1. rickparker01 says:

    Back in the seventies Dodge made a six cylinder engine extensively advertised as the “Slant Six” which was no doubt trademarked. Unlike most engines it really did slant in the engine compartment so the name was factual. I wonder if that would be an issue today and if so where does that leave us with “white bread?”

  2. dan says:

    https://www.law.cornell.edu/supct/html/97-0282.ZS.html
    Faragher v City of Boca Raton would seem to have settled the matter? there’s no way one could argue that SPICS NOT WELCOME is not a discriminatory environment ?

    Having a mark and not being able to use is is common enough. Even zoning can trump it. Try opening a storefront for the distribution of “Porn the Game”across from a school in city that limits adult stuff to certain blocks. Or the KKK marks that were challenged but not cancelled.

    • Jay Wolman says:

      Farragher didn’t have the situation where the business name was a potentially harassing trademark, where the trademark exists because of the 1st Amendment. If the trademark only exists because of the 1st Amendment, then it is protected speech. The government would have to then show that a Title VII prohibition on harassment can withstand 1st Amendment scrutiny. This situation has not been addressed by the Court.

  3. […] week, I wrote about a potential implication from In re: Tam, based upon the hypothetical from a dissenting judge […]

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