The evening of Easter Sunday, a couple dozen people at Flying Dog Brewery, in Frederick, Maryland, were singing and shuffling along to a concert by the Slants, an all–Asian American rock band whose leader is a plaintiff in a pending Supreme Court case. A loud “No!” reverberated around the bar as the crowd joined the chorus of “From the Heart”:
No, we won’t remain silent,
Know it’s our defining moment,
We sing from the heart,
We sing from the heart.
Those lyrics may sound generic, but the Slants have a very specific complaint. When, in 2009, the band sought to trademark its name—a tongue-in-cheek way of reclaiming and defanging the common anti-Asian slur—the U.S. Patent and Trademark Office turned down the application, citing a provision of the Lanham Act of 1946 that allows the federal government to deny registration of trademarks that “disparage” any person or group. In essence, the band name, an ironic commentary on racism, was itself deemed racist.
The band sued, and the long-running case has made the Slants, a Portland, Oregon–based quartet who sound a bit like Fall Out Boy, a darling of First Amendment enthusiasts. They’ve gotten used to entertaining audiences like the one at the brewery, where the crowd was a mix of mostly older, conservative locals, D.C. lawyers, and Ayn Rand–thumping libertarians. (There were no Asian Americans.) While Flying Dog prides itself on in-your-face, adolescent labels (In-Heat Wheat, Doggie Style Pale Ale), the brewery is quietly tucked inside a bland corporate park, its interior decorated with industry-standard faux-rustic craft brewery fare: a long wooden bar, wooden picnic tables inside and out, Edison light bulbs. The only signs of edginess were several framed drawings by Flying Dog’s official label artist, Ralph Steadman, who illustrated Hunter S. Thompson’s journalism with derangement and splatter. The band was set up on a makeshift stage past one end of the bar.
Among the audience, sipping a beer and dressed in blue chino shorts and a short-sleeve button-down, was Ilya Shapiro, a senior fellow at the Cato Institute, a libertarian think tank, and author of a satirical amicus brief in support of the Slants. “Getting a trademark would really do a lot for them in terms of marketing nationally and breaking out of their Pacific Northwest audience—and this weird niche of legal nerds who know about them and want to support them,” he said. (The band’s lawyers argue that a trademark is crucial for getting a record deal.)
“We’re playing at law schools and law conferences,” Simon Tam, the bandleader and bassist, said after the show. That’s in addition to their usual venues, which include rock clubs, Asian American community centers, and the occasional anime convention. Like the rest of the group, Tam was dressed in an untucked black dress shirt and black jeans. He is often asked to talk about the case. “Sometimes they want me to debate a law professor, which is really not what I want to do,” he said.
The Slants’ legal battle endeared them to Jim Caruso, the fast-talking CEO of Flying Dog. Caruso, a self-described “hard-core libertarian,” spent the show taking pictures and video on his phone. Before the concert, he described his conversion to Randianism with the precision of a born-again Christian recalling a moment of salvation: “July 21, 1977. That weekend, I read Atlas Shrugged cover to cover. I discovered who I was that weekend. I knew I’m about freedom. It’s part of who I am. It can be annoying.”
The U.S. Patent and Trademark Office turned down the Slants’ trademark application. In essence, the band name, an ironic commentary on racism, was itself deemed racist.
Michigan’s Liquor Control Commission once found Caruso’s company more than annoying. In 2009, it banned Flying Dog’s most popular beer, Raging Bitch Belgian IPA, from the state, citing its name as “detrimental to the health, safety or welfare of the general public.” In 2015, the U.S. Court of Appeals for the Sixth Circuit ruled that the commission had violated the brewery’s First Amendment rights. Caruso used the $40,000 in damages to create the nonprofit 1st Amendment Society, which sponsors readings of banned books and has set up a scholarship for investigative reporting at the University of Maryland’s journalism school. (It was the official host of the Slants concert.)
Painted in white lettering over the threshold to a hallway where official tours of the brewery begin was the full text of the First Amendment, which says in part, “Congress shall make no law . . . abridging the freedom of speech.” The U.S. Court of Appeals for the Federal Circuit, which handles patent and trademark cases, broadly ruled in the Slants’ case that the disparagement provision of the Lanham Act does precisely that and was therefore unconstitutional. The government appealed, and the Supreme Court heard oral arguments in January; the justices seemed deeply skeptical of the government’s position. (As this article went to print, a ruling was expected by late June.)
The crowd at the brewery didn’t seem perturbed by the implications that a victory for the Slants would have for less sympathetic trademark applicants. In 2014, the Patent and Trademark Office canceled the Washington Redskins’ trademark under the same provision that it invoked to deny the Slants’. A broad ruling striking down the law could even force the government to grant trademark protection to, say, a white supremacist band that uses racial slurs un-ironically.
In Tam’s view, that would be a price worth paying. The law, he argued, disproportionately affects “communities of color, members of the LGBTQ community, because these are groups that tend to re-appropriate language and icons.” One famous example is the San Francisco lesbian group Dykes on Bikes. “We can’t be so obsessed with punishing Dan Snyder and his racist football team to accept that the collateral damage would be experienced by burdened communities,” Tam said.
Naturally, the Slants have used their creative platform to respond ironically to their predicament. They titled their fourth album, released in 2012, The Yellow Album. Their newest is called The Band Who Must Not Be Named.
The audience seemed to enjoy the music, and several people walked away with copies of the new album. Tam packed up his bass, which had a sticker reading, “Slanted Eyes, Slanted Hearts.” The band was in the midst of a seventy-city tour, next stop D.C.
Caruso said he would host the Slants again to celebrate if the Supreme Court rules in their favor, as it is widely expected to do. “Not only are they fighting the right fight, they’re pretty talented guys,” Caruso said. “I’m eager to see what they do with their music.” He added, “Society will never be as free as I wanted it to be as a kid, but you always move in the direction of more freedom or less freedom. So I look at today, and this is in the direction of a little bit more freedom.”
