Now playing at the Supreme Court: The Deplorables!

|The Volokh Conspiracy |

[UPDATE: For those of you looking for a more comprehensive (and balanced!) treatment of the issues in the Lee v. Tam case, the folks at scotusblog have put together an online seminar here]

As VC readers know (see Eugene's post here), the Supreme Court has agreed to hear the case of Lee v. Tam this term (oral argument is scheduled for Jan. 18). Simon Tam is the bass player in the Asian American rock band The Slants. When he applied for a federal trademark registration for the band's name, his application was rejected, based on Sec. 2(a) of the federal trademark statute (the Lanham Act), which denies trademark registration to "scandalous, immoral, or disparaging marks," including marks that a "substantial composite of the referenced group" perceive as disparaging a religion, nation, ethnic group, belief system and the like.

Tam sued, arguing that this provision violated the First Amendment, the Court of Appeals for the Federal Circuit agreed (9-3, in an en banc decision by the full court), and the Supreme Court granted certiorari back in September.

Last week, our friends at Cato Institute, joined by a self-styled "Basket of Deplorable People," submitted a truly wonderful amicus brief supporting Tam's challenge. The brief is a ringing and spirited defense of "disparaging" speech—not that speech disparaging of others is inherently a good thing, but in defense of the principle that the government has no business deciding which speech is "disparaging" and which speech isn't.

It is destined to be an instant classic, and it is well worth reading—a nice illustration, among other things, that legal briefs can have serious doctrinal content while also being a hoot to read. There are far too many terrific nuggets in there to quote them all, but a few will give you the flavor:

The PTO has inserted itself into a cultural debate. It's no secret that for centuries, people have used language to ridicule and debase. Slurs have been used to stereotype groups, to label its members as inferior, and to express contempt in a universal shorthand. But for just as long, some of the people in these very groups have decided that the explosive power of these charged words does not have to be monopolized by those who seek to demean. As Randall Kennedy [in Nigger: The Strange Career of a Troublesome Word] has described, these people "have thrown the slur right back in their oppressors' faces. [Blacks] have added a positive meaning to nigger, just as women, gays, lesbians, poor whites, and children born out of wedlock have defiantly appropriated and revalued such words as bitch, cunt, queer, dyke, redneck, cracker, and bastard." [citing works such as Michael Thomas Ford, That's Mr. Faggot to You: Further Trials from My Queer Life; Michael Warner, The Trouble with Normal: Sex, Politics and the Ethics of Queer Life; Eve Ensler, The Vagina Monologues; Inga Muscio, Cunt: A Declaration of Independence; Elizabeth Wurtzel, Bitch: In Praise of Difficult Women (1998); Jim Goad, The Redneck Manifesto; Dyke Life: From Growing Up to Growing Old, a Celebration of the Lesbian Experience (Karla Jay, ed.); Jonathan Eig, This Woman Wants You to Call Her Bastard.

[T]he disparagement clause is unconstitutionally vague. Its application will always be unpredictable, because nearly any brand could be taken as disparaging by some portion of some group. Take, for low-hanging fruit, Aunt Jemima, Uncle Ben, the Cleveland Indians' Chief Wahoo, the women in La Tortilla Factory, or the Keebler Elves. Amicus Flying Dog Brewery has its own history of legal disputes over beer names like "Raging Bitch."

[O]ne of this brief's authors is a cracker (as distinct from a hillbilly) who grew up near Atlanta, but he wrote this sentence, so we can get away with saying that. Another contributor-unnamed because not a member of the bar-is an Italian-American honky who has always wanted to play in a band called the Dagos, which of course would close every set with "That's Amore" from "Lady and the Tramp." But, with only his great grandparents having come from Italy, is he dago enough to "take back" the term? And amici's lead counsel is a Russian-Jewish émigré who's now a dual U.S.-Canadian citizen. Can he make borscht-belt jokes about Canuck frostbacks even though the first time he went to shul was while clerking in Jackson, Mississippi? It gets complicated. And that's the point …

Great stuff. Well worth reading in its entirety—and perhaps tacking up outside the dormitory entrances at our colleges and universities.

And in conclusion:

Amici, and all others who sometimes find themselves lumped into a basket of deplorables-now that's a great band name!-urge the Court to let people judge for themselves what's derogatory.

I've got 10 bucks that says this brief gets cited in the court's opinion.