Asian American dance-rock band The Slants visited UC Hastings for a live performance followed by a question and answer session.
Among the legal community, the band is most famous for Matal v. Tam, 137 S. Ct. 1744 (June 19, 2017), in which the U.S. Supreme Court held 8-0 that the disparagement clause of the Lanham Act, which prevented the registration of offensive trademarks, was unconstitutional on First Amendment free speech grounds. The Slants picked their name to reclaim the stereotype of Asians having “slanted eyes,” and so the case sits at the intersection of intellectual property, constitutional law, and race.
The event was co-hosted by the UC Hastings Asian Pacific American Law Student Association (APALSA) and the San Francisco Intellectual Property Law Association (SFIPLA). Over 200 students, faculty, attorneys, and community members heard bandleader Simon Tam discuss the case, moderated by UC Hastings Constitutional Law Professor Radhika Rao. The discussion was followed by a concert performance from the Portland, Oregon-based band, including Simon Tam on bass, Ken Shima on vocals, Joe X. Jiang on guitar, and Yuya Matsuda on drums.
As president of APALSA, I immediately reacted with caution when SFIPLA asked us to co-host the event. The case of The Slants is mired in controversy among the Asian American community. When Tam initially filed to register his trademark, he submitted 2000 pages of supporting documents, including letters from Asian American community leaders. They argued that as members of the Asian American community, The Slants should be allowed to reclaim the term as a means of combatting historical oppression and institutional racism. Groups like the San Francisco-based Dykes on Bikes empathized with The Slants case, as they also fought a protracted case before the U.S. Patent and Trademark Office (USPTO) would approve their trademark registration.
However, several Asian American civil rights groups filed amicus briefs against The Slants, including Asian Americans Advancing Justice - AAJC as well as the National Asian Pacific American Bar Association (NAPABA). While they acknowledge The Slants’ intent to reclaim the term, they believe the Supreme Court ruling went too far, opening the doors for everyone, including groups like the Washington Redskins, to register trademarks for offensive slurs. Although many agree that the USPTO’s system for determining offense was flawed — the office could only proffer Urban Dictionary to refute The Slants’ claim — rather than invalidate the rule, Asian American community leaders like Jenn Fang of Reappropriate called for a more nuanced process in which impacted communities would have substantial agency over determining what they deem to be offensive.
In light of that controversy, I was unsure how to respond to SFIPLA’s request. Rather than being a celebration of Tam’s victory, I wanted the event to address the nuances of case and assess its potential impact on communities of color and other underserved communities. SFIPLA respected this concern, which led to our “fireside chat” moderated by Professor Rao. Rao deftly navigated the conversation through the Slants’ journey to the Supreme Court while asking difficult questions about the case’s implications on minority groups.
Tam was prepared for a nuanced conversation and addressed the controversy of his case head on. When Rao asked Tam about the disagreement amongst the Asian American community, he embraced this conflict because it highlights that the Asian American community is not monolithic. He said the disagreement serves as a reminder that it is foolish to stereotype and generalize about a race that consists of people from dozens of different ethnic backgrounds who hold a wide variety of different perspectives.
Tam also emphasized the differences between his case and the Washington Redskins, as The Slants are an Asian American organization trying to reclaim a racial slur used against their community, while the Washington Redskins is a white, non-indigenous group that falsely claims to be honoring Native Americans. Furthermore, while indigenous groups have substantially criticized the Washington Redskins for their use of a racial slur, The Slants have received little, if any, criticism regarding their name. For these reasons, Tam refused to let the Washington Redskins join onto the case, and when fans of the football team attempt to congratulate him on his victory, Tam uses the opportunity to discuss how the team’s name disparages indigenous communities.
Finally, although Tam sympathized with the argument that the trademark registration process should be more nuanced, he emphasized that the Lanham Act was inconsistently and discriminately applied against minorities. Most notably, other organizations with “slant” in their names were allowed to register their trademarks, but The Slants’ trademark registration was specifically denied because their members are Asian American.
Throughout the talk, I was most impressed with Tam’s sincerity as an activist. He demonstrated a genuine passion for Asian American issues and combating institutional oppression and racism. Even though Tam is not a lawyer, he spoke so proficiently on the legal aspects of the case that Professor Rao joked he should attend law school.
Though Tam was weary from spending almost eight years fighting this legal battle, he nevertheless maintained his resolve toward racial justice. The resolve of The Slants shone through in their live performance of “From the Heart,” a love letter to the USPTO emphasizing the band’s continued mission of Asian American activism. They sang “Sorry if we try too hard / To take some power back for ours” and “No, we won’t remain silent...We sing from the heart.”
As The Slants sang about their resolve for racial justice, I felt a similar sense of solidarity with the Hastings community for helping to make this event possible. The APALSA executive board stepped up amidst the chaos of the start of the semester, in particular our Professional Development Chair Belle Yan who took charge of event and food logistics. Professor Rao embraced her moderator role and dove right in, poring over the case, amicus briefs, and article commentaries, as well as listening to The Slants’ albums.
The event garnered unsolicited, but welcome, support, as Constitutional Law Professors Rory Little and Matthew Coles, along with the Constitutional Law Quarterly (CLQ) and American Constitution Society (ACS) hyped up the event and encouraged students to attend. As the event quickly sold out, Event Services flexibly shifted the venue from the Alumni Reception Center to the Louis B. Mayer Lounge, and SFIPLA rolled with the changes and accordingly increased their financial support. Local Tenderloin businesses Turk & Larkin Deli and Hello Sandwich & Noodle were also generous in their catering of the event.
I still think ideally, there should be more a nuanced trademark registration program where impacted communities decide what is offensive. I still am wary of the impact of Matal v. Tam on indigenous and other oppressed communities. Even so, the event gave me a newfound respect and admiration for the activism of Simon Tam and The Slants. Regardless of the controversy of the case, Simon Tam serves a role model for other Asian American activists, and I look forward to The Slants’ next endeavor.
Jeremy Chan is a 2L at UC Hastings. He is currently president of the Asian Pacific American Law Student Association (APALSA), and is also a Sack Teaching Fellow for Professor David Takacs’ Torts class. At UC Berkeley, during his officership with the Nikkei Student Union, Jeremy learned about the Japanese American incarceration during World War II and its connection with Post 9-11 Islamophobia, thus inspiring him to pursue social justice law. This past summer, Jeremy served as a Peggy Browning Fellow for the Partnership for Working Families, where he researched state interference and preemption of minimum wage laws in the context of the legacy of Jim Crow.