Asian-American dance-rock outfit The Slants continue their fight for recognition all the way to the US Supreme Court
While parts of the federal government applaud their work in reaching out to Asian-Americans, The Slants continue the fight to trademark their name
The US government doesn’t know what to make of The Slants, the all Asian-American dance-rock band at the centre of this term’s most vexing Supreme Court free-speech case.
One branch of the federal government has for years fought the band’s effort to register a trademark for their cheeky name. In a case going before the justices this week, the Patent and Trademark Office argues that a decades-old law forbids official recognition of trademarks that “may disparage” members of a particular ethnic group – in The Slants’ case, fellow Asians.
But other parts of the government love The Slants. The Defence Department sent the group to Bosnia and Kosovo to entertain troops; military police were called when the party went on too long.
The White House is into them, too: The Slants were included in a compilation of Asian-American artists that is part of an anti-bullying initiative – “deeply ironic”, says band founder Simon Tam, because the song chosen is “an open letter to the trademark office”. Which must be a first for a Supreme Court plaintiff.
At Track Town Records in the Oregon college town of Eugene, where The Slants were putting finishing touches on their new EP, The Band Who Must Not Be Named, Tam reflects on the mixed reaction.
“One branch of government is celebrating us for our work in the Asian-American community, and the other area of government is calling us racist,” he says. “But I’m kind of used to it at this point.”
Contradictions abound in the case, Lee v. Tam. For one, a victory for The Slants would be a godsend for the Washington Redskins, whose legal battle to hold on to its revoked trademark has been put on hold pending the outcome. The band members abhor the Washington nickname and wince when the team’s fate is linked to their own.
“I don’t want to be associated with Dan Snyder,” Tam says, referring to the team’s owner.
Another oddity, at least to the band: the trademark office has registered several versions of the word “slant”, but turned down Tam’s application specifically because of the band’s Asian-American connection.
Some Asian-American groups support Tam’s attempt to reappropriate a slur and make it a point of pride. Tam’s cause has united the American Civil Liberties Union and the conservative religious law organisation, Alliance Defending Freedom.
But groups of minority lawyers oppose them, and a coalition of liberal, minority members of Congress say that the First Amendment shouldn’t force the federal government to give a stamp of approval to hateful speech.
It’s a free country, and The Slants can call themselves whatever they want, acting Solicitor General Ian Heath Gershengorn wrote in his brief to the court. But the government is under no obligation to provide the band with the legal protection and benefits that come with trademark registration.
“Nothing in the First Amendment requires Congress to encourage the use of racial slurs in interstate commerce,” Gershengorn wrote.
The government is appealing a decision by the US Court of Appeals for the Federal Circuit that found the prohibition on the registration of marks that “may disparage … persons, living or dead, institutions, beliefs or national symbols” violated the First Amendment.
Tam, 35, a onetime religion and philosophy major turned bass-playing MBA, says record labels and agents require bands to register the trademarks; it’s not a privilege so much as a necessity.
Tam has always approached the band as a business, and wants to reach the place where band members can quit their jobs and make music full-time. (Tam himself is the marketing director for an Oregon environmental non-profit, an adjunct at two colleges and a travelling writer and speaker who sits on six boards of directors.)
As the other members coaxed lead singer Ken Shima through his umpteenth phrasing of a line in their new song Fight Back, Tam was constantly on his laptop in the dark and chilly studio. He was booking gigs for the band, and posting appeals on social media for money so the band can travel to Washington for the Supreme Court hearing.
“Our case is not the floodgate for hate speech in this country,” Tam says during a break.
“Every single racial slur you can think of for Asian-Americans is a trademark right now. And almost any kind of slur you could think of for any group is a registered trademark right now. The law’s not working.”
Even if it makes The Slants uncomfortable, the Redskins have a lot riding on the case. The team is locked in its own battle with the trademark office, which cited the disparagement clause in revoking the team’s decades-old trademark registration in 2014. The team’s own battle with the office has been put on hold until the Supreme Court acts on The Slants.
Tam says he got the idea for his band’s name even before it formed in 2006. The child of parents from mainland China and Taiwan, Tam was raised in diverse Southern California but moved to Portland to join another band.
“They call Portland ‘America’s whitest city’,” Tam says. “It’s changing now, but at the time if I saw a table of Chinese people, I’d go up to them and say ‘hello’.”
Always the “token Asian” in bands, Tam decided he would start his own, and he put up posters in Asian shopping centres and dim sum restaurants until he found a line-up. The band has changed over the years, but now consists of Tam, Shima (Japanese-American) Yuya Matsuda (Japanese-American) and Joe Jiang, who was born in China.
“I wanted to flip some stereotypes over,” Tam says, and he asked friends what all Asians had in common.
“The first thing they said: all Asians have slanted eyes,” he says. “I thought, ‘That’s interesting.’ Number one, because it’s not even true. But then I thought, I could call it The Slants. It would be this play on words – because we could talk about our slant on life, what it’s like to be people of colour, to be Asian-American.”
Neither Tam nor any of his bandmates said they had never been called a “slant” growing up, and did not even think of it as a slur. “We played a lot of Asian American festivals and a lot of Asian press covered us,” Tam says. “None of them even asked why were called The Slants.”