Hacker News Reader

Comment by headcanon | Hacker News Reader

In the polarized and racially tense environment we find ourselves in, I wonder how the supreme court would have ruled had the band members not been Asian American. Personally, given the circumstances and the intentions of the band members, it feels ridiculous that the government would have refused to trademark the name, however I'm sure a lot of people would feel differently if it was a white supremacist band named something egregiously racist towards minorities.

I'm sure some alt-right types will take full advantage of this decision to do what they do best - troll

View on HN

I don't think it would. The justices are smart people, they know full well the precedent they have set can be used by white supremacists et al. Their decision explicitly affirms that hate speech is not exempt from First Amendment protections.

As an aside, this is why the judicial system is probably my favorite branch of government. Debates in Congress are not real debates; congressman are using them to score political points, not convince the other side of their argument. Same with the executive branch, it's all about re-election which means they have to concern themselves with the optics of their actions. Only in the judicial branch do we at least try to make decisions based on reason and rational argument. It's how we got legal interracial marriage at a time when something like 90% of the population thought it was immoral. The justices don't care about the optics of the case, only the facts, because establishing a precedence means these decisions can have broad consequences.

> The justices don't care about the optics of the case, only the facts

Well... sort of. In reality they do a complicated and delicate balancing of the optics, practical effects, and ivory tower type rationality. Though I think your point, drawing a contrast, still stands up quite well.

Lots of people in this thread are equating smarts to a lack of inherent human bias. I agree that there is a relationship there, but if you read enough cases, you get the feeling they often stretch to get to the conclusion they had (knowingly or unknowingly) predetermined.

Oh justices are absolutely biased, it's impossible to have a human being who isn't. The point is that the justices have to defend their decision with some sort of rational argument, while congressman simply vote yay or nay on a bill without qualifiers or precedent being set.

That insulation from politics is the same rationale for monarchy/hereditary positions/equal-representation-in-senate/electoral college.

When we're in the victorious minority, we like insulation from direct majority rule, but when we're in the disgruntled majority, those restrictions on democracy aren't quite as attractive.

Insulation from politics isn't really why I like the judiciary. It's that their entire basis for influence requires a line of reasoning and rational thought. Having electable judges is to some degree orthogonal to the issue.

That's a great point. I'm glad as well that we have at least one part of government that is able to keep a head on their shoulders.

The Washington Redskins had already filed an Amicus brief in support of this change.

It seems weird to me that this became a free speech issue; I had always assumed trademarks were not a form of speech, just business protection (similar to a patent).

The name of your business is indisputably considered speech. By providing trademarks to some business names and not others, the government is providing substantial commercial rewards to certain kinds of speech over others. It might still be a kind of business protection, but the issue is that they must provide that protection without regard to the speech of the applicants.

To be clear: very few people involved in the Redskins naming controversy think they should be prevented from using the name as a matter of law. It's not inconsistent to believe they have a first amendment right to name the team what they want but also that the name is offensive and should be changed (or even that the NFL is within its right to force such a change).

Very few "members of the public", maybe, but that doesn't really matter for much when the Patent & Trademark Office is attempting to strip them of their patent protection because they consider it a slur.

https://en.wikipedia.org/wiki/Washington_Redskins_trademark_...

That was compounded SCOTUS' rejection of the Redskins appeal, though this opinion should basically resolve the Redskins dispute anyway.

Trademarks are a form of censorship.

South Park had Cartman use the un-trademarkable version of the Redskins to achieve his personal business goals in an excellent season of South Park: https://www.youtube.com/watch?v=rnK-jYzaWtw

That's quite a claim you just made. By the same reasoning, would you consider copyright censorship as well?

I have no doubt the Redskins could keep their name if they were actually comprised of Native Americans that wanted to call themselves that.

Well, as this decision effectively strikes down the provision that the PTO was using to deny the Redskins trademark protection, they effectively just won the right regardless.

Then no more Dallas "Cowboys" either.

Cowboys and Giants aren't a race. Celtics is not a racial slur.

And let's not even get into the Boston "Celtics"...

Yeah, the police union will take that one and keep it for themselves faster then you can say donuts in the break room.

And clearly the Giants are the size of mere mortals.

I think it's pretty hard to argue that their decision would have been any different regardless of the ethnic makeup of the band.

Whether or not one agrees or disagrees with the political views of any of the Supreme Court justices, I think you'd be hard-pressed to argue that any of them are unintelligent. They're very clearly aware that this ruling sets a precedent that will apply to future trademarks regardless of the background of the applicant, and yet still ruled unanimously in favor of the band.

I don't think you give the supreme court justices enough credit. I think most cases they see are "exemplar" cases, not average cases, as to improve the chances of a favorable ruling. The justices are aware of this fact.

I think trademarks generally take at least 6 months to go through, so this probably isn't a great avenue for trolling. Also, you could already call yourself whatever you want. It's not that much more impactful to be able to put a little TM next to your group's name.

I believe you don't need to register in order to use TM(™), you just use it. Once you've registered, you use ®.

It could actually be used against racists, right? You could trademark a bunch of offensive terms and then sue alt-right types for trademark infringement whenever they use those terms in print or something. IANAL and only have a basic understanding of trademark law, so I'm probably missing something.

I think you have to actually be using the terms in some bona fide business context for them to be eligible for trademark protection. It's different from patent protection, where you can just sit on a patent without using it.

You also don't become an "owner" of the word, you just get an exclusive right over its commercial use on a specific sector.

Probably the same way. Although the petitioners in his case were Asian, it is well known to the Court (being seated in DC) that the same legal issue is also involved in the long-running legal/political dispute over the naming of the Washington Redskins football team.

The Redskins also filed an amicus brief in this case, so even if they somehow managed to avoid hearing about it, they would have found out about it from this case.

The Redskins thing is hardly a regional issue unknown to the rest of the country (not that I disagree with your point).

>I'm sure some alt-right types will take full advantage of this decision to do what they do best - troll

I see that as a good thing. That kind of trolling works because it points out hypocrisies in the underlying system.

Haven't "trolls" always benefited from freedom of speech and a government that takes that right seriously?

If we want a free and open society we need to take the bad with the good.

well, presumably this ruling restores the Redskins trademark to the football team, and certainly the Justices would know this. since the majority of this organization is not presumably Native American, your question isn't speculative but is directly answered: they hold the the infringement of free speech cannot be justified.

Words are words, people are welcome to be shocked or amused if somebody uses the word slant, cracker, wetback, wap, gook, frog, or paddy. Trolling, joking, or dead serious, no word should be off the table.

Reply on news.ycombinator.com