The Slants pointedly represent a demographic rarity in pop. Billing themselves as a “Chinatown Dance Rock” band, they formed a decade ago as one of the only all Asian-American ensembles in their ‘80s-style synth-pop genre. It didn’t take long for their kitschy hooks and biting lyrics about racial justice and LGBTQ inclusion to catch on. But for most of the Portland-based band’s existence, their new-wavey appeal has been overshadowed by a controversy over their name.
Not long after they formed in 2006, The Slants clashed with an arcane seventy-year-old trademark regulation that deemed their name too racist to be certified under federal law. The dispute launched a long-running legal fight and a national debate about cultural racism and First Amendment politics that just came to a close this summer. In June, after eight years of litigation, the High Court affirmed the band’s right to trademark their name.
The initial rejection from the Patent and Trademark Office (PTO) stated that the name “The Slants” was disparaging to people of Asian descent under “disparagement” standards for trademark language. Because their name was deemed racially offensive, it was therefore inappropriate for trademark registration under Section 2(a) of the Lanham Act.
The Slants’ mischievous but bookish frontman Simon Tam, the only founding member still with the band, was jarred. Yes, the band name played on old ethnic slurs with bold irreverence, perhaps, but it had never sought to be disrespectful, least of all to the community it sought to represent in the white-dominated world of rock.
What the PTO mistook for prejudice was actually an extension of ideas The Slants had already explored in their lyrics. In “Sakura, Sakura,” (2007) they inverted another old taunt: “We sing for the Japanese/And the Chinese/And all the dirty knees/Do you see me?”
With equal parts amusement and disgust, Tam saw the PTO’s rejection as precisely the kind of cultural blindness that his music aimed to combat. He wondered how a Truman-era law on trademarking standards could be used to judge a name discriminatory, particularly when the alleged victims included the band themselves.
“I thought it was a practical joke because of how deeply involved in the community we were,” Tam told me. Even more perplexing was that the source of the PTO’s racial insight was apparently urbandictionary.com—effectively elevating the crowd-sourced definition of an online slang clearinghouse above the creators’ own self-identity.
“We felt like they were stripping the agency from our community to determine what’s best for ourselves,” Tam said. He researched other “slants” in the trademark registry and discovered that a number of companies had been granted trademark protection for products of the same name, including a manufacturer of industrial coils. If these products could use the name without any trouble, why was the word “slant” suddenly obscene once Asian Americans applied the moniker to themselves?
The PTO’s rationale waded into an artistic conundrum surrounding race and reappropriation. The marginalized and insulted have long empowered themselves by stealing back insults, a tendency that has accelerated with the postmodern reclaiming of pejoratives like “queer” and, more recently, “slut,” “bitch,” and assorted racial slurs.
About a generation after the trademark law was enacted, LGBTQ people began embracing the word queer to describe their loud, proud, and public culture of sexual and gender transgression. By choosing a slur for their name, The Slants were drawing inspiration from a community that had arrived by “coming out” and naming itself, seeking emancipation by rubbing its so-called deviance in the establishment’s face. In its petition challenging the PTO’s rejection, the band argued that it was putting an Asian inflection on the queering of stereotypes, “fighting bigotry with the time-honored technique of seizing the bigots’ own language.”
The government, however, presented the context for its decision by pointing out that the band’s album art and website displayed Asian people (that is, the band members), which according to the trademark bureaucrats’ logic risked triggering a mental connection with the derogatory usage of the term “slant.”
Tam read the PTO’s verbal contortion as double-reverse discrimination—“basically saying that, because we were so Asian, like super Asian, people would automatically associate the word slant with an outdated and obscure racial slur. . . . But of course, that’s kind of a more convoluted way of saying anyone can register The Slants, as long as they’re not Asian.”
When Tam challenged the PTO’s decision before the Trademark Trial and Appeal Board, the ruling came down on the side of disparagement: “[t]he fact that applicant has good intentions underlying his use of the term does not obviate the fact that a substantial composite of the referenced group find the term objectionable.”
It’s not clear what theoretical “substantial composite” the government was citing, since the band has said they have never received any negative comments about the name from Asian-American listeners—and in fact many found the name clever, perhaps even self-affirming and inspiring, not degrading.
The PTO failed to take into account the band’s advocacy for racial justice and social movements. The Slants have written songs expressing solidarity with Black Lives Matter as well as subverting so-called model-minority stereotypes of Asian Americans. They flirt with a grim history with refrains like, “If you want to let me in, I promise to be the right one,” which might refer to the Chinese Exclusion Act or a reluctant lover.
The band’s petition further contended that the PTO’s definition of “disparaging” was inherently arbitrary in that it focused almost exclusively on “negative” terminology out of context. At different points, the PTO has permitted Asian references such as “CELEBRASIANS” and “ASIAN EFFICIENCY.”
The Slants prevailed in lower court decisions, but the PTO appealed all the way to the Supreme Court. Though Tam had never expected the case to go that far, he pushed forward with the litigation to stand by the band’s original point: the statute wasn’t just “unconstitutionally vague” on its face; if the state removes the power of ironic self-reflection from a group, it takes away self-referential humor as a tool of rebellious expression. The reclamation of the slur wasn’t a gimmick, but a gesture of defiance against caricatures like the vintage obsequious bucktoothed Charlie Chan or the exoticized but two-dimensional Fu Manchu.
The Slants could have kept gigging and selling albums without official trademark registration, but they decided to press ahead with a legal fight, to show that every community deserves the right to identify with a provocative word, humorless regulators be damned.
Tam wasn’t as worried about the band’s trademark as he was about the fact that he had been subjected to “this very degrading process of trying to prove you’re not offensive to yourself.” For Tam, blaming the creator for the audience’s ignorance is both humiliating and chilling to free expression. If The Slants didn’t take up the fight, the next victim of the Lanham Act might well lack the legal resources or will to defend their First Amendment rights in court.
As the case wended through the courts, however, it acquired some strange bedfellows: the Washington Redskins filed a brief in support of The Slants, on the premise that it affirmed their own legal case to trademark their name despite its offensive nature. The Slants, frustrated as they were by the Redskins’ cooptation of reappropriation, had to accept that their cause attracted a spectrum of support, from student racial justice groups to the Cato Institute to the most incendiary franchise in pro football.
Besides, awkward support from free-speech fair-weather fans had a silver lining—many of those seeking to exploit the Slants’ case to skewer “PC Culture” had stumbled upon a band that vocally championed anti-racism, which created a rare moment for dialogue.
“[W]e actually saw a huge rise in followers from the far right and from fans of the football team, because they thought that we were just these ultra-libertarian warriors of free speech,” Tam recalled. The band infused their Twitter feeds with anti-racist messaging: “now we’re trying to educate them while having a bit of credibility with that community.”
In June, the Supreme Court sided with this unlikely coalition, ruling that, in Justice Samuel Alito’s words, “The disparagement clause . . . offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” The court’s reasoning invalidated the law’s arbitrary standard for offensive speech.
The ruling restored The Slants to the right side of the Bill of Rights, Tam says, by affirming that “ultimately communities should be able to determine what’s best for themselves, because when you place that power of making those decisions in the hands of the government, they tend to get it wrong. . . . They don’t understand identity politics, so we know that we need to take that bit of power back.”
The Slants’ lawsuit came to a close during a troubling shift in the country’s political power balance. The case was launched in the wake of the election of the first black president, and ended amid a new wave of right-wing reaction. Yet in a way, the court’s opinion resonates with the polarizing tenor of the times, and Tam hopes it spurs activists on the radical left and far right to realize that free exchange of ideas is even more critical during moments of political upheaval: “I think most people want to be rational and appreciate these [free speech] values as a whole.”
The band’s trademark battle also punctuates an ongoing dialogue on the politics of language. To Tam, words can either be “a blade: In the hands of an oppressor or someone with harmful intent, they can be used to hurt. But in other hands, they can be used to . . . create healing in our own communities, or inspire people to rise up for themselves.”
Michelle Chen is a contributing editor at Dissent and co-host of its Belabored podcast.