Not everyone agrees with that approach to “taking back” a derogatory label, but the artistic marketplace should decide the issue, not the government—which punished the band by denying them federal trademark registration.
Well, in a unanimous ruling Tuesday that splintered on its reasoning, the high court correctly held that the “disparagement clause” of the Lanham Act (the federal trademark law) violated the Constitution. The ruling in Matal v. Tam boils down to the simple point that bureaucrats shouldn’t be deciding what’s “disparaging.”
Trademarks, even ones that may offend many people—of which the Patent and Trademark Office (PTO) has registered plenty—are private speech, which the First Amendment prevents the government from censoring. As Justice Samuel Alito put it in a part of the opinion that all the justices joined (except Neil Gorusch, who didn’t participate in the case), “If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.”