DECEMBER 5, 2019
SECTION 2(A) OF the Lanham Act states that “no trademark shall be refused registration on account of its nature unless, inter alia, it consists of […] matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” But is this provision facially invalid under the Free Speech Clause of the First Amendment?
Musician Simon Tam decided to answer that question when he commenced a court battle to trademark the name of his Asian-American band, The Slants. He never suspected the fight would take eight years, over the course of which Tam fought for what he believed to be the right to choose his own identity. This battle ultimately ended in the Supreme Court, where Tam won his case against the government. In Slanted: How An Asian American Troublemaker Took On The Supreme Court, Tam details a brief history of court rulings involving immigrant status to give readers an idea of the slow evolution of change that has happened over the decades and led eventually to the Lanham Act of 1946, also known as the Trademark Act. Along the way, he chronicles the evolution of his love for music and the beginning of his band.
Tam recounts, in sometimes painful detail, the difficulty of keeping the band together while fighting the court system. It was a period of hardship and stress that took a toll on his relationships, band, and finances. Tam’s story is one of an accidental warrior, constantly amazed by what he had gotten himself into. Looking back, it seems as though he still can’t believe it.
I spoke with Tam briefly in Columbus, Ohio, while he was on tour, and later via email, to discuss life after the Supreme Court, the direction of his music, and what trouble he might make next.
DAVID BREITHAUPT: You had quite a résumé of activity leading up to the formation of your band, such as helping impoverished neighborhoods in Mexico. What was the turning point which made you realize you were an activist?
SIMON TAM: I think to some degree, I always believed in the idea of working with marginalized communities, especially those who experienced poverty, but I never really thought of myself as an activist until shortly after starting The Slants. I started embracing the label of “activist” when I realized that philanthropy alone couldn’t address issues that are systemic and institutionalized. As I started working with grassroots advocacy organizations, I became more aware of how social activism plays a critical role in dealing with long-term solutions, in addition to trying to address the immediate issues of our world.
Speaking of turning points, you describe several scenes of being bullied in high school, being the only Asian-American student in the area. When some fellow students taunted you and called you a “Jap,” you said, “I’m not a Jap, I’m a Chink!” which shut them up. What gears did that event start turning in your mind?
I think at that moment, it was just about survival, although I did learn a couple of valuable lessons that day. First, I learned that there is power in claiming an identity, in saying, “You can’t use this against me — only I get to decide my identity.” Second, it taught me that there’s more than one way to find a solution that doesn’t end in fighting. I think we sometimes forget how a powerful combination of courage and wit can sometimes neutralize hate.
Your book contains histories of court cases recounting the struggles of immigrants attempting to become naturalized citizens of the United States. In particular, you cite the Chinese Exclusion Act of 1882, which denied citizenship to immigrants from China. This resulted in the landmark case of Chae Chan Ping v. United States, in which Ping was allowed to stay in the United States as he had been a resident for several years. He was promised reentry to the US when he visited China, but that was canceled when he tried to return. In light of President Trump’s Muslim ban and his other immigration policies, how much do you think has really changed since the 1800s?
While anti-immigrant sentiments have been persistent and have become more prominent in recent years, I think quite a bit has changed since the 1800s. For example, it was very unlikely for immigrants to get any kind of help through the legal system even as recently as a few decades ago. It was even unclear if civil liberties and constitutional rights were extended to non-citizens. Today, people have recourse, and there is a better balance of power, even if the current administration is trying to ban certain groups of people according to race or religion. There are also far more allies and advocacy groups now than there were before, and coalitions are being built across the political spectrum to bring greater compassion to these issues. It doesn’t mean that there won’t be the occasional setback, but I do believe the words of Dr. Martin Luther King Jr. and Theodore Parker ring true: “The arc of the moral universe is long, but it bends toward justice.” We just have to remember that the arc doesn’t bend on its own; it requires patience, persistence, and people willing to fight for the greater good.
Which brings us to your trademark battle for the name of your band, The Slants. Would you have pursued this cause had you known it would take eight years and end up in the Supreme Court?
I don’t think I would have pursued this case if I had known from the start what it would take because I was a different person then. I was mostly focused on my career as a musician, and I didn’t really understand things like institutionalized discrimination or the disparate impact of legislation until I was going through a protracted legal process myself. If I knew that it was going to take nearly a decade, cost me time that I could have spent with the friends I lost, put me on the verge of bankruptcy, and tear the band apart, I probably would have said no. But I’m glad that I went through it, that I persisted and fought so that no one else has to go through the indignity of the process over some outdated law again.
You wrote that, in regard to the Trademark Office, you believed the government would “act responsibly and fairly.” Instead you ended up in an Orwellian nightmare despite your — and your lawyer’s — best efforts to comply with their requests. How surprised were you by this rabbit hole that you and your team fell into?
I don’t think anyone could have expected that was to come. How could any reasonable person believe that we were disparaging to our community when the government only had an entry on Urban Dictionary to support its case? I knew that dishonesty was certainly possible within the government, but I never imagined that they would bother with that when it came to a trademark registration, especially since all of the records were public. We gave them everything they asked for — surveys, dictionary experts, legal declarations from community leaders, addresses of all of the so-called complaints from Asian-American events — and they still insisted that a wiki-joke website trumped all of that. It’s been years, but it still really bothers me that they deliberately used false information about us even though they knew better. I was just delivering a presentation yesterday and someone asked, “But didn’t the government have all these examples of Asian Americans who were offended and canceled your concerts because of the name?” Those falsehoods have lingering effects on my work, but the government doesn’t have to be accountable or relive that experience again and again. That was something I never even thought would continue to follow me, even after winning in the Supreme Court.
I don’t think that it’s uncommon, especially in a case that went on as long as yours, that people pick up snippets of information whether they be true or false and latch on to them for whatever reason. In this case, do you think it might be because we are living in a time of intense word policing? And that people find such stories easy to believe?
I think that part of the reason this is so prevalent is because we’re living in an age of information overload. Ignorance is convenient, whereas nuance requires intention, research, and time to process information. This of course is aggravated by social media, clickbait culture, and the desire to appear informed about current issues. People will scan headlines and share tweets or stories without reading full articles because it’s easy to do so without consequence. It’s a culture of Nelsonian knowledge more than anything else, and as such, it’s easier to consume, believe, and spread.
One aspect of white privilege that you discuss in your book is being able to decide when to speak out for a cause and when not to. Do you think the Trademark Office decided to become active in preventing what they deemed racist terminology, as it pertained to your case, to save the Asian-American community from itself? That they thought they knew more about this than you, an Asian American? It feels like what they thought was a good intention, turned out to be the exact opposite, by not letting you decide your own identity.
I don’t believe they did so with the intention of trying to protect the community from ourselves. I believe that the Trademark Office was trying to avoid political controversy by stepping into complicated ideas of identity politics and reappropriation of language while being blinded to the actual reality of the Asian-American experience. It seemed degrading to think that no matter how much evidence we presented — and we certainly brought forward a lot of evidence from our community — it wasn’t enough to overcome their presumptions driven by an entry on Urban Dictionary. Whether they realized it or not, their actions resulted in the stripping of identity and dignity of marginalized communities seeking to reclaim these words.
What impact has the decision on your trial had on other court cases?
There haven’t been that many cases where the court has cited the reasoning behind my case, but the most prominent one has been in Iancu v. Brunetti, where a fashion designer was denied trademark registration for their clothing company, FUCT. In that case, the Supreme Court struck down the “scandalous and immoral” provisions of Section 2(a) in the Lanham Act, essentially removing the government’s ability to prevent trademark registration based on “offensiveness,” provided that they meet all of the other criteria of obtaining a trademark registration. I’ve seen a couple of other cases that use my case to distinguish the difference between private speech and government speech, but I think it’s still fairly new so we haven’t seen widespread impact yet.
As you mentioned earlier, your eight-year battle was a hardship for your band. How is your music life after the win?
After the case was resolved, I needed some time to process. I was burnt out. That was part of why I moved across the country away from the band. I needed some space. Since then, I’ve been able to create more by writing music as well as my book. I’ve been also involved in other creative projects, such as hosting a daily podcast show on the music business and collaborating on a musical. More than anything else, the win has given me more capacity to create, which wasn’t possible before with the mental and emotional strain of the case. However, I’ve also decided to retire from playing live music in the band. This fall, our band will no longer be touring with its full rock show. We’ll still be producing music and focusing more on our nonprofit and collaborating with other artists, but I think that the many years of touring while trying to fight a major court battle made it no longer sustainable for me.
Do you have any plans for making trouble in the future?
As for the future, I’m working on a couple of different projects at the moment. I’m very excited to launch a new nonprofit organization called The Slants Foundation and to put most of my creativity and energy into it. For me, I want to help equip a future generation of troublemakers by helping artists incorporate activism into their work. I also have a couple of other ideas for future books and projects that I’ll be working on as soon as I return from this book tour.
David Breithaupt has written for The Nervous Breakdown, Rumpus, Exquisite Corpse, and others. He has worked as a bibliographic assistant to Allen Ginsberg, a newsstand checker for Rolling Stone, and a staff member to the great Brazenhead Bookstore in New York City. He currently works for two sports newspapers in Columbus, Ohio, covering the Cincinnati Reds and OSU collegiate sports.