In Case You Didn’t Notice Last Week’s Supreme Court Ruling

I don’t write a ton on Heeb these days, but I want to acknowledge Simon Tam’s incredible efforts to get trademark protection for “The Slants,” a Portland-based, Asian-American dance-rock band whose name was a riff—nay, a “re-appropriation” of a term that has been used pejoratively towards Asian-Americans. Tam was initially refused trademark registration under section 2(a) of the Lanham Act, which denied protection for terms that were “immoral” or “scandalous.” Tam collected statements from Asian-American organizations vouching for the band’s positive impact on the Asian-American community and news stories about the band’s impressive record of activism, but the United States Patent and Trademark Office (USPTO) somehow wasn’t convinced that the word wasn’t being used in a disparaging way.

Around the same time that Tam was first denied a trademark for “Slants,” we were denied trademark protection for “Heeb” events and apparel. In the USPTO refusal dated January 16, 2006, examining attorney Jennifer Vasquez, argued:

Registration is refused because the proposed mark consists of or comprises immoral or scandalous matter. Trademark Act Section 2(a), 15 U.S.C. §1052(a); TMEP §1203.01. According to the attached evidence from a search conducted on Google, the proposed mark HEEB refers to an anti-Semitic ethnic slur derived from the word “Hebrew” and is thus scandalous because anti-Semitism is hostility toward or prejudice against Jews as a religious or racial/ethnic group. To be considered “scandalous,” a mark must be “shocking to the sense of truth, decency or propriety; disgraceful; offensive; disreputable; … giving offense to the conscience or moral feelings; … [or] calling out for condemnation,” in the context of the marketplace as applied to goods or services described in the application.

“Heeb” was, of course, a re-claiming of an age-old, ethnic slur, and meant to be provocative. When Jennifer Bleyer founded the magazine she thought it was the perfect word to describe a magazine that would explore a new generation of Jewish identity. It was also a nod to the power of the “n-word,” that many black people were increasingly using with one another, albeit sometimes controversially, as a term of endearment.

The grounds for our response to the USPTO could be summed up in two words: Context mattered. That is, the meaning of words wasn’t fixed, but tethered at any given moment to the ways that they were being used. And so we submitted reams of evidence of how we were using the word “Heeb.” We pointed to the hundreds of “Heeb” events we had held, which connected young Jews with one another—many who otherwise would have had barely or any connection to their heritage. We pointed to the dozens of Jewish organizations and businesses paying thousands of dollars (okay, hundreds) for advertisements—some to even “heeb-ify” their ads so that they would be more relevant to our generation.

We also had Jewish leaders write letters in our behalf, putting our use of the word “Heeb” into communal and historical context. As historian Jonathan Sarna argued:

There is a long history of Jews taking upon themselves names that their enemies considered derogatory. The word “Pharisee” comes from the Hebrew word meaning “separatist” (perushim), which was an epithet flung at them. The Jewish Pharisees took on the word as a badge of honor. Members of the Hasidic movement, a Jewish pietist movement that arose in the eighteenth century, castigated their enemies as “opponents” (mitnagdim). That epithet soon became the normative term assumed by Hasidism’s opponents, who proudly call themselves “Mitnagdim” to this day. The very word “Jew” was an epithet in many non-Jewish circles, which is why American Jews in the nineteenth century preferred terms like “Hebrew” or “Israelite.” Yet in the late nineteenth century, young Jews consciously reassumed the word “Jew,” transvaluing it from an epithet into a badge of honor. The great Jewish poet Emma Lazarus has a famous poem entitled “The Banner of the Jew” (1882) which was part of this effort. In our own day, young intellectual Jews in Russia have similarly begun to reassume the word “zhidy” – long a derogatory slur (often translated as “Yids”), but in their mouths a cry of defiance and self-respect.

The USPTO summarily rejected our appeal. But even worse, inexplicably, the USPTO had, a couple of years earlier, granted trademark protection for “Heeb,” the magazine. Our lawyer advised us to halt our appeal process, fearing that in our efforts to secure trademark protection for “Heeb” events and apparel, that the USPO might re-examine and rescind the magazine’s trademark. So we watched from the sideline as Tam and his lawyer Ron Coleman did battle in court. When a Holocaust denial group threw what it described as a “Heeb event” one night in New York City, all I could really do about it was send an angry letter and contemplate the power of bricks and baseball bats. The episode cast into clear light the fact that denying trademark protection for Heeb events on the grounds that it was immoral and scandalous was de facto facilitating actually immoral and scandalous “Heeb” events!

While we put to rest our legal challenges, Tam shifted tactics. Instead of continuing to argue that context largely determined the meaning of a word—that there were, in essence, immoral and indecent ways of using the word “Slants” and moral and decent ways of using the word “Slants,” he and his lawyer made the case that the First Amendment denied the government’s ability to privilege certain viewpoints in its trademark rulings. And last week, the United States Supreme Court ruled unanimously in Tam’s favor: that the federal government cannot deny trademark registrations for what it might consider a disparaging or scandalous term—that doing so violates the First Amendment.

So what does this mean for Heeb? Well, from what I can gather, it comes down to three things:

1) We now have the ability to establish trademark registrations for Heeb events and apparel. So all of you wondering if by attending the next “Heeb” party you hear about you’ll end up in a Neo-Nazi Detention Center, fear not.

2) As the recent NPR podcast revealed, one of the USPTO lawyers who considered our mark was, in fact, a HEEB fucking subscriber!!!!!! You know there’s something wrong with the law when you have a jury as sympathetic as O.J. did and you still don’t get off. Go to the 9:18 mark of the podcast and hear this subscriber/lawyer recommended to a colleague that Heeb not get trademark protection for fear of it offending her fragile Jewish grandmother.

3) Speaking of fragile Jewish grandmothers, the recent Amicus Podcast included a clip that makes clear that Ruth Bader Ginsburg is more than familiar with a certain epithetically-titled magazine—and presumably not only to provide lining for her parakeet’s bird cage. You can skip to the 15:16 mark for RBG’s name-drop. 


I can’t believe after so many years of following each other’s progress and having a bunch of friends in common I never talked to Simon Tam. Without further adieu, I give you my interview with him.


Simon Tam of The Slants

It’s great to finally connect. I’ve been following your case for years.
Yeah, I’ve read about the history of your case. Especially when we first started, our whole strategy was kind of based on it.

Ultimately it wasn’t a successful strategy. They never could accept that we were taking the word “Heeb” back, re-appropriating it as a badge of honor as opposed to a badge of shame.
We’ve seen it time and time again: Marginalized groups deciding ‘We should define what’s appropriate for ourselves. We should be able to take the sting from words that are used against us and defining them ourselves as opposed to somebody outside of the community.

The battle with the USPTO took a lot out of me. It was a degrading process. Here we are making this magazine, throwing events all over the country and generating so much positivity and then have to make this case that you’re not using the word immorally. One of the things I admired watching you guys challenge the courts is that you somehow managed to parlay the fight for the registration into momentum for the band—or at least that’s how it seemed from the outside. Or did you resent it at times? 
I resented it all the time. There were so many times that I wanted to give up. When you mention it being a degrading process, I can totally relate to that. We had to go and beg members of our community that we had been working with for years to publically come out and declare that we were okay to work with. And some of them felt like, ‘Well, what if we accidentally legitimize other slurs being used?’ So it put them in these questionable positions. For awhile people thought it was a giant PR campaign—as if I could somehow orchestrate the decisions of the trademark office and federal court judges at every step of the way. Plus, the entire time we were fighting, I was constantly being compared to (Washington Redskins Owner) Dan Snyder or considered his puppet. That kind of stuff is awful, especially because I work in social justice hemispheres and with Native-American groups—and so I was constantly finding myself having to say, ‘No, this is different.’ And articulate the nuances of this very archaic and obscure law…. I honestly wouldn’t have been able to do it if it were it not for the support of a lot of community groups and people close to me who were urging me to do it on principle.

Your victory was the best possible outcome for free speech. But wouldn’t it have been even better if the USPTO just recognized the error of their ways, that you were using the word ‘slants’ in a positive way and that, therefore and that you deserved trademark protection—rather than obliterating Lanham so that the government can no longer deny protection to the actually immoral and scandalous? I mean, as Ruth Bader Ginsberg put it, ‘Everybody knows…’ I forget the exact quote.
“Everyone knows that The Slants are using this term, not at all to disparage, but simply to describe, to take the sting out of the word.”

Yes, everybody knows that. So are we just giving up on common sense? Did Lanham really need to go? Couldn’t they have just added more staff to the USPTO so that they could have more time to rationally consider individual applications?
Yeah, that’s something we argued in the beginning, but the more we went about the process, the more we realized how inequitable the law was. At the end of the day, you’re asking already-burdened people—because most of the people registering re-appropriation marks are from marginalized groups who have few resources—you’re asking them to go through what you’ve already called a degrading process. And it’s not like at the end of the day you end up getting a refund if you get it reversed, as if somebody’s going to say, ‘You know what? We messed up. We misinterpreted this.’ They require you to get community leader letters, but also national independent surveys and dictionary experts—all of which costs hundreds of thousands of dollars just so you can correct their mistake. And that’s just wrong. That’s bad law. The other part of it is that trademarks are transferable. So you can do all of this great work, provide all of this context and someone else can buy it and use it with bad intent. Or conversely, a White supremacist group can portray their work as neutral or even positive and then completely change their tactics after they receive their registration. And then they’d be able to use their name in a denigrating way and the law wouldn’t be able to do anything about it. And once they got the registration, it’s really hard to cancel it—as is the case with Dan Snyder’s football team. They’ve been in court for, like, 20 years.
You bring up the Redskins. Now that you’ve made it impossible for the USPTO to deny trademark protection on the grounds of immorality and indecency, how do you feel about unwittingly helping the Redskins getting their cancelled marks back?
Dan Snyder wasn’t going to change the name of the team regardless of whether he had trademark protection. It’s all outside of that realm. He built so much trademark equity over the years he wasn’t in danger. Even if he lost the cancellations, he had so much power that he could enforce his trademark with government protection however he saw fit. So it’s one of those tenuous things: Do we take down this law used against marginalized groups and while doing so help out Dan Snyder or do we allow the status quo to exist and our communities to struggle through this joke of a process?

What you did makes sense. I mean, if actual legal minds can’t tell the difference between a bunch of progressive Asian kids from Portland re-appropriating a slur as a rallying cry to make the world a better place and a white guy in Washington D.C. expecting protection for a franchise established by one of the most notorious racists in the history of professional sports banking on pernicious stereotypes about Native-American savagery and barbarism, then maybe we really do need this ruling.

If the Redskins invited you to play at halftime at one of their games, would you guys do it?
If Dan Snyder allowed us to say whatever we wanted, I think it could be a very punk way of bringing attention to the racism of the team name.

Do you have any sense of how many groups are there out there like ours and yours struggling to grow businesses or organizations using what were once considered bad words?
I know of at least several dozen organizations like ‘Dykes on Bikes,’ our band, there’s a Seattle female-fronted band called ‘Thunderpussy.’ But it’s not just what we call ‘bad words.’ It’s also neutral words. There’s this Japanese restaurant that was opened up called ‘Fuku’ which is a Japanese word for luck or joy, but they were denied because the name looked too much like an obscenity, not that it actually was, but that it could be interpreted as if it was. And that’s just ridiculous. Imagine their dismay when they saw all of the trademark registrations for French Connection UK (‘fcku’), which also is not an obscenity but looks like the exact same word.

Which Supreme Court justices were most sympathetic to your case and which were least?
I would say Samuel Alito and Anthony Kennedy were probably most sympathetic. I think Ruth Bader-Ginsburg was sympathetic too but more for the social components of our case. I would say the most critical by far was Sonia Sotamayor who takes hate speech very seriously and has more of the position that the government should try and regulate it as much as possible. But at the end of the day she agreed that our case constituted viewpoint discrimination, which I was kind of shocked by, I was shocked when I heard that the court ruled 8-0 in our favor.

Any plans for a new Slants album? A victory tour? Another First Amendment battle?
We’re probably going to avoid another legal battle. We’re in the studio. We’ve been working on a new album for the last year. We’re probably going to tour. It’s not going to be a victory lap or celebration. I mean, honestly, I couldn’t wait for the case to be over. There’s more to me, and my band, than a trademark office fight.

Well, thanks for fighting the good fight. We’re really appreciative of all the hard work you’ve put in over the years.
Thank you. We appreciate you reaching out and also taking that pioneer battle too. Our case was built on groups like yours that struggled before us. Just seeing how ludicrous the whole process was for you and groups like yours, it kind of fueled me, to say that ‘We can do better as a country. We shouldn’t be making people go through this process.’ In a lot of ways, I don’t know if we would’ve even continued our case if it wasn’t for the work that Heeb was doing.

What do you think?

About The Author

Josh became an editor-at-large after accruing exorbitant legal fees as the publisher of Heeb in his efforts to trademark the word "irreverent." Follow him on Twitter @joshuaneuman.

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