Lee v. Tam Page 15

Lee v. Tam general information

Media for Lee v. Tam

Audio Transcription for Oral Argument - January 18, 2017 in Lee v. Tam

John C. Connell:

-- a politeness statute.

John G. Roberts, Jr.:

Well, we heard from Mr. Stewart that they thought the disparagement aspect would distract from the commercial identification.

I -- I think that's what he said.

John C. Connell:

Yes.

John G. Roberts, Jr.:

And you're saying that's -- that's not really their purpose or --

John C. Connell:

Well, I'll say they -- that's nowhere in the legislative history and that's nowhere in the legislation itself.

I mean, that seems to be pulled out of thin air by the government, who, again, in their brief talks about reducing the -- the level of insult or the occasion of insult to customers.

That's -- that's not part of the Lanham Act.

That's not part of the commercial purpose of the Lanham Act.

Ruth Bader Ginsburg:

Would you say the same thing about a scandalous mark? Would that be equally impermissible?

John C. Connell:

I think that conclusion is inevitable. If there are no further questions.

John G. Roberts, Jr.:

Thank you, counsel.

John C. Connell:

Thank you.

John G. Roberts, Jr.:

Mr. Stewart, two minutes.

Malcolm L. Stewart:

Thank you, Mr. Chief Justice. Let make three quick points. Mr. Connell has said that the government -- that the government registration program regulates only the expressive and not the commercial aspect of the mark, and I think that's getting it exactly backwards. The -- Mr. Tam wants to do two things with the mark The Slants.

He wants to use the mark himself in relation to his band, and he wants to be able to sue other people who use it in a way that would cause him commercial harm.

And denial of a registration affects only the second thing.

It places no restrictions on his ability to use the mark.

It may limit the remedies that are available for infringement, but -- but that's entirely regulating the commercial aspects of the conduct. The second thing is Mr. Connell's position clearly is that the test for constitutionality of a registration condition is, could the government ban this speech altogether? And putting that in place would eviscerate the trademark registration program.

Most obviously, as -- as Justice Kagan has pointed out, there are a lot of other content-based registration criteria. And in addition, I'd point out one of the prerequisites to registration is that you be using the mark in commerce.

If this were truly a suppression of speech, we'd ask by what authority could the government make the right to speech contingent on providing goods and services in commerce. Finally, Justice Kagan, you mentioned commercial speech.

And there is an important government communicative aspect to this program.

The preparation of the principal register is not just an ancillary consequence of this program.

It's the whole point to provide a list of trademarks so other people know what has been approved, what's off limits. And the consequence of Mr. Connell's position is that the government would have to place on a principal register, communicate to foreign countries the vilest racial epithets, insulting caricatures of venerated religious figures.

The test for whether the government has to do that can't be coextensive with the test for whether private people can engage in that form of expression.

Samuel A. Alito, Jr.:

Mr. Stewart, you really think that speech can be restricted by the government on the ground that foreign countries may object to it? Could -- could the government do that with copyright? I mean, an awful lot of things are copyrighted in this country that are deeply offensive to some foreign countries, and yet, the FBI enforces the copyright laws.

Malcolm L. Stewart:

I would agree that with the copyright is different.

It's historically played a far more fundamental role in free expression than trademark law has played, but the government, at the very least, has a significant interest in not incorporating into its own communications words and symbols that the public and foreign countries will find offensive.

John G. Roberts, Jr.:

Thank you, counsel. Case is submitted.