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Blog: Why Court of Appeals Take on Racist Name is Wrong


By Ed Diokno

Racist names have been deemed OK by a ruling rendered by federal appeals court last week. A case involving an Asian American rock band that called itself The Slants, the U.S. Court of Appeals for the Federal Circuit said the band can call itself whatever it wants based on the First Amendment’s Freedom of Speech provision.

“We’ve long held that this case is not the Pandora’s Box for hate speech, that free speech is absolutely essential for having nuanced discussions of race and identity,” said the band members on their website. “We’re thrilled that the court recognizes not only our legitimate business practices, but our expressive and political speech as well, which lies at the heart of the First Amendment.”

The Dec. 22 ruling In Re Simon Shiao Tam could have far-ranging impact on other trademark names such as that NFL team based in Washington that calls itself a racist term for Native Americans.


Despite opposition from other Asian American organizations, the Portland-based dance/rock band will be allowed to continue using the racist monicker.


Like the rap group NWA using the dreaded N-word in its name “With Attitude,” they artists seek to reclaim, or “take ownership” of the racist term and in so doing, they say, lessen the offensiveness of the word.


The court ruled:


The band draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes, J.A. 130, and its albums include The Yellow Album and Slanted Eyes, Slanted Hearts. The band “feel[s] strongly that Asians should be proud of their cultural heritage, and not be offended by stereotypical descriptions.”

That’s what they intend to do. I’ve never heard them perform, so I can’t judge them musically. They certainly got a lot of publicity in this court battle.
“This case calls for an end to a law that is being used to suppress minority voices.” said David Rogers, executive director for the ACLU of Oregon.
When the Asian American band sought to register its name with the trademark office four years ago, a Patent and Trademark Office examiner denied it for being offensive to Asians.


The office also took the same position against the Washington-based football team. But NWA has a trademark. How’n hell did that happen?

The National Asian Pacific American Bar Association (NAPABA), the South Asian Bar Association of Washington DC (SABA-DC) and the Fred T Korematsu Center for Law and Equality jointly filed an amicus brief defending the U.S. government’s decision on The band’s trademark application. From their press release:


“Asian Pacific Americans are all too familiar with the harm, including violence, that often accompanies racial slurs and epithets,” said NAPABA President George C. Chen. “Although I recognize the band’s intent to reclaim a historically disparaging term, as an intellectual property attorney, I also am cognizant that changing the U.S. trademark regulations to allow the registration of ‘The Slants’ could result in the trademarking of offensive terms by individuals and groups without similarly positive intentions.”

“SABA-DC deplores the use of racial slurs and epithets, and while the particular epithet involved in this case is not one that is usually directed to our South Asian constituency, we believe slurs against any racial or ethnic group are damaging to us all,” added SABA-DC President Habib F. Ilahi. “The First Amendment protects free speech, but it does not entitle those who wish to use such derogatory terms for branding purposes to receive the stamp of government approval.

If you want a bit of enlightened reading, check out pages 8 and 9 of the ruling. It’s a list of trademarks rejected as disparaging by the Patent and Trademark Office.
These include: Stop the Islamization of America, The Christian Prostitute, Amishhomo, Have You Heard That Satan Is a Republican?, Democrats Shouldn’t Breed, Republicans Shouldn’t Breed, Fagdog and more,

Good company, in my view and good reason to deny the name the band chose. But hey, I’m not a lawyer or a judge, just an apparently overly sensitive Asian American who through my life has had to bear-and-grin-it after being called every derogatory Asian stereotype in the book.


The question arises then, is there no limit to offensive trademarks?


It is expected that the ruling will be appealed to the U.S. Supreme Court. If the High Court agrees with the lower court, expect an explosion of expletive-deleted trademarked products to start appearing in our streets. Any semblance of civility or politeness, even if it is sarcastically called “political correctness,” will disappear.



  1. RE: Why court of appeals take on racist name is wrong: So are you going to gripe about Chicago-based indie band, The Flips? http://hiweretheflips.com/bio/ Surely a seemingly all-white-member band calling themselves after a possibly derogatory term is disparaging to Filipinos.

    What about the popular T.V. show, 'Fresh Off the Boat'? Doesn't the term FOB disparage all Asians in America?

    Unless you can distinguish these two examples from The Slants, then yes, you are just being overly sensitive.

  2. RE: Why Court of Appeals take on racist name is wrong: Hi Ed,

    I just wanted to clarify a few things about this case because there's a lot of misinformation out there. True, NAPABA filed a joint amicus brief against our case, but they also had supported us for five years, including at their national conference. Also, while a few API organizations took issue with the name, 150+ advocacy and social justice organizations supported our use of it. A national survey also showed that 92% of Asian American supported our use of the name.

    Unfortunately, the Federal Circuit hearing's use of my "quotes" had no basis in fact – I wasn't allowed to speak during the hearings so they mischaracterized my sentiments. Our case was originally built on the fact that the Trademark Office rejected our application because of our ethnicity, not because "slant" is an inherent racial slur (because it isn't). They said our band was "too Asian" to use it – that's why anyone could register a trademark for "slant," as long as they aren't Asian. Why you may not agree with our use of the name, I think we can all agree that denying rights based on race is wrong.

    Furthermore, the Trademark Office deliberately used false evidence in our case – which is what prompted NAPABA and their partner organizations to write their brief. Since they were unfamiliar with the details of our case, they relied on the inaccurate evidentiary record.

    Also, the court only struck down the disparagement provision as unconstitutional. The provisions about things being scandalous or immoral still stand. It has nothing to do with whether or not something is "racist," just "disparaging" (though that definition is vague).

    For us, the band name has always referred to our "slant" on life as people of color, not the incorrect stereotype. We're social justice activists who have been fighting for equity for nearly a decade now. Unfortunately, the Trademark Office mischaracterized this work and presented our battle through the courts as opportunistic than for what it was: exposing their consistent oppression of minority voices.

    Links to sources, evidence, etc. here: http://newsite.theslants.com/when-our-story-went-

    I hope you'll consider taking a look at the other side of the story, not just the misleading headlines and biased court opinion.

  3. Lumpia_roller,
    As a matter of fact, I'd be against the name of The Flips too as well as FOtB as offensive but no one asked me for my opinion. Just as NWA caused a difference of opinion in the African American community, The Slants will probably create some discussion among Asian Americans.
    The post from my blog "Views From The Edge" is a personal opinion and doesn't represent anybody else's opinion. The conclusion is based not on legal opinion but on my own personal life experiences, an opinion – I'm sure you'll agree – I'm entitled to hold. Thanks for the clarification, though, I breathe a bit easier knowing that The Slants hold some of the same goals as I do.


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