Standing on the steps of the U.S. Supreme Court on Wednesday afternoon, Simon Tam, the bassist and frontman of the Asian-American rock group The Slants, was fired up. He'd just watched as most of the eight justices questioned whether the government should back his right to use his band's name, which is a racial slur.
"If the government really truly cared about fighting racist messages they would have canceled the registrations for numerous white supremacist groups before they even approached our case," he told a crowd of reporters.
Tam had just emerged from the oral argument for Lee v. Tam, in which a representative of the U.S. Patent and Trademark Office insisted that Tam couldn't register the band's name because it was disparaging toward Asians. Tam maintains that the whole point of his band — and his advocacy — is to empower Asian-Americans and subvert stereotypes.
His case, which has become inextricably linked to the battle over the Washington Redskins name, has put some Asian-American activists in a complicated position. While they're inclined to stand behind a fellow advocate pushing for equity for Asian-Americans, they wonder: At what cost? Would aligning themselves with The Slants put them in league with people pushing to protect a name that's offensive to Native Americans?
Tam says he sees his trademark effort as another form of activism; as paving the way for others who want to reclaim words through registered trademarks.
"We grew up and the notion of having slanted eyes was always considered a negative thing," he said. "Kids would pull their eyes back in a slant-eyed gesture to make fun of us ... I wanted to change it to something that was powerful, something that was considered beautiful or a point of pride instead."
Tam said he's had a lot of time to think about "what ifs." Like, what if the case was used to support the Redskins?
"At the end of the day, I've become more comfortable with that notion," Tam said. "Because we've been so obsessed with punishing villains like [Redskins owner] Dan Snyder, we don't realize that there is this impact on bystanders. Those bystanders, in this case, would be the marginalized groups who have been trying to get their own trademarks registered. And to me, it's more important to protect those communities than to worry about one racist guy getting his football team."
(Snyder contends that his team's name is not racist and that it actually honors Native Americans.)
The communities Tam is talking about protecting include the biker organization Dykes on Bikes, which won federal registration for its name but not its logo, and Heeb media, a Jewish publication that won registration for its newspaper but not its clothing products.
But his advocacy strategy is exactly what concerns some activists.
While groups spanning the ideological spectrum including the Cato Institute, the Asian American Legal Defense Fund and the American Civil Liberties Union have filed amicus briefs backing The Slants, a small cohort of activists isn't so sure.
"[Tam] casts himself as a First Amendment hero in a way that doesn't really make sense given what is really at stake," Robert Chang, executive director of Fred T. Korematsu Center for Law and Equality, wrote in an email. Chang's group filed an amicus brief in support of the trademark office. "And he ignores ... the impact that his case will have on the decades-long effort of Native American activists with regard to the Washington football team. In much of his public commentary, he focuses on how he thinks the law was applied unfairly to him, in a racially discriminatory manner. He could have limited his legal theories and legal challenge to focus on that."
Instead, Chang said, Tam's trying to invalidate the law "that permits the government to deny federal registration, and the government's imprimatur, to the Washington football team."
Cecelia Chang, legal director of Asian Americans Advancing Justice (AAJC), said that the uptick in racially and religiously motivated hate crimes over the last year underscores what's at stake.
"There's a real world cost to normalizing that kind of speech, particularly in a country of immigrants," she said.
In an amicus brief she filed on behalf of AAJC, which supports neither party, Chang acknowledged that many of the people behind the brief are fans of The Slants and generally "support efforts to reclaim and re-appropriate derogatory terms, but believe that socially progressive reclamation movements are not an excuse to open federal trademark registration to vile epithets and hateful marks."
The justices are expected to issue a ruling by June.
Just hours after he left the Supreme Court, Simon Tam and his band were at a gathering in northwest Washington, D.C. Tam told a small crowd about his journey into Asian-American activism and on to the nation's highest court. Then he and his band members broke out some instruments.
They began to play a new song from their recent album. They call it, "The Band Who Must Not Be Named."
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