In In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), the Federal Circuit held the government could not withhold trademark registration because the name was disparaging. In re Tam involved a band called The Slants and the Patent and Trademark Office had determined that the name represented a racial slur that was disparaging to people of Asian descent and thus could not be registered as a trademark under the Lanham Act, and its ruling was upheld by the federal District Court. Band leader Simon Shiao Tam had argued that he was trying to reclaim the word just as the previously derogatory word “queer” had been reclaimed by LGBTQ persons. The Federal Circuit reversed the trial court’s ruling, finding Tam’s expressive speech to be protected by the first amendment even if the name was disparaging and its use a violation of the Lanham Act.
The court did not address the question of how to deal with regulation of discriminatory speech by employers or public accommodations or housing providers that has long been regulated under antidiscrimination laws to ensure equal access to the market and has never been held to violate free speech rights. There is no constitutional prohibition, for example, to requiring restaurants to refrain from insulting customers because of their race. That suggests that a nuanced approach to free speech issues is needed rather than a blanket prohibition on regulation of the expressive content of speech.