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Race And Government Regulation: No 1st Amendment Rights For Asian-American Band ‘The Slants’

October 22, 2013 by  

Race And Government Regulation: No 1st Amendment Rights For Asian-American Band ‘The Slants’

A Portland, Ore.-based group of young American musicians — all of Asian descent — can’t give their band the name they’ve been fighting for since 2009. The U.S. Patent and Trademark Office has rejected the name because of sensitivity concerns.

Is the name obscene? Does it slander someone? Does it incite sedition?

Nope. But these guys have been trying for four years, without success, to trademark the name “The Slants.”

Phew, that’s a relief. At least they didn’t try for something on the safe side of the 1st Amendment, like “Dead Kennedys” or “Murder City Devils,” or offer lyrics like “I shot Reagan — and I’d shoot him again and again and again.”

The patent office isn’t having any of it, telling the group the name disparages people of Asian ethnicity. One of the patent office’s two cultural citations in justifying their rejection of the name comes from the Urban Dictionary’s user-generated definition of “slant.”

Try falling back on a user-based source like Urban Dictionary or Wikipedia to qualify a term paper citation and see what grade you get. Yet both were good enough for the U.S. Patent and Trademark Office to make its case against the 1st Amendment.

In the band’s first defeat in 2009, the patent office argued that “slant” is offensive to people of Asian descent — regardless of whether that’s what the band intends. The band members, in fact, have said they like the ambiguity of the word and its many interpretations, and that anyone who wants to infer racial undertones from the name hopefully will come away with a positive impression after hearing the music.

Now the band members are planning an appeal in Federal circuit court. They note that the patent office has cleared more than 760 applications in which the word “slant” (or some variant) is used. Yet only they, with their Asian background, have been rejected.

Band manager Simon Tam subtly noted the perverse racism implicit in the patent office’s position, telling the Portland Business Journal  that “[t]heir only justification for applying an accusation of disparagement on our case but no other applicant was based on my race.”

In fact, the implication is that if we weren’t Asian, there wouldn’t be any problems because people wouldn’t associate our name with an obscure racial slur.

And while it’s true that the people in the band can be identified by a band’s name, it doesn’t necessarily mean that the members literally embody the name of the band. No one thinks “The Rolling Stones” are literal masses of undulating rock or that “Led Zeppelin” is a metallic reincarnation of the Hindenburg blimp.

He’s right, of course; but getting bogged down in the nuances of meaning and intent misses the bigger picture.

The Slants’ case is just the latest of many instances that pit a seemingly well-intentioned government nanny, citing a perfectly plausible-sounding reason such as safety or equality, against the Constitutional rights of all Americans. The patent office lost a similar case involving a motorcycle group called “Dykes on Bikes” in 2005, after a Federal appeals court overturned its decision not to allow a trademark filing to proceed.

Our founding documents were diligently crafted to protect citizens from — guess who? — the government itself. Now, not only is the U.S. Patent and Trademark Office guilty of meddling and racism, but it’s also guilty of knowingly violating the 1st Amendment.

Ben Bullard

Reconciling the concept of individual sovereignty with conscientious participation in the modern American political process is a continuing preoccupation for staff writer Ben Bullard. A former community newspaper writer, Bullard has closely observed the manner in which well-meaning small-town politicians and policy makers often accept, unthinkingly, their increasingly marginal role in shaping the quality of their own lives, as well as those of the people whom they serve. He argues that American public policy is plagued by inscrutable and corrupt motives on a national scale, a fundamental problem which individuals, families and communities must strive to solve. This, he argues, can be achieved only as Americans rediscover the principal role each citizen plays in enriching the welfare of our Republic.

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