A team led by Haddonfield lawyer John C. Connell has won a major free-speech victory on behalf of an Asian American rock band called the Slants — and for the rest of us, too.
In a unanimous decision announced Monday, the U.S. Supreme Court said the federal government violated the band's First Amendment rights by refusing to provide trademark protection for its name, which has long been used as an anti-Asian slur.
The 39-page decision struck down portions of a 1946 federal law prohibiting what the U.S. Patent and Trademark Office deemed "disparaging" or "offensive" trademarks.
The Slants, who have released a song titled "The Band Who Must Be Named," say they are pushing back against discrimination by "re-appropriating" the slur, much as LGBT folks have done with queer and other onetime insults.
"The government does not have a role to play in refereeing the public discourse over what is appropriate or inappropriate speech," Connell said Tuesday from the office of the law firm Archer & Greiner, where he is a partner.
"The debate will continue, as it should — robustly, freely and openly — but in the context of public discourse. Not mediated, judged, or arbitrated by the government," added Connell, a veteran litigator of civil matters involving communications and media law. He represented the Slants pro bono.
The 8-0 decision, in which the newest justice, Neil Gorsuch, did not participate, may have an impact on another contentious trademark-related issue: Redskins as the name of Washington's NFL franchise. In statements Monday, owner Dan Snyder said he was "THRILLED," and lawyer Lisa Blatt declared that the Redskins had been vindicated.
An American Civil Liberties Union news release dubbed the Slants the "Rock Stars of the First Amendment." On its website, the band, which is based in Portland, Ore., said, "We're beyond humbled" to have won the case.
The Slants "believe in the deliberate disarmament of toxic language," the statement continues, adding that "language and culture are powerful forms of expression, and we are elated" the nation's highest court agrees.
Connell made the hour-long oral argument before the Supreme Court on behalf of his client, band leader Simon Tam, on Jan. 18. His colleagues Ronald D. Coleman and Joel G. MacMull, who had litigated the case in the lower courts, attended the session as well.
"It was very gratifying to get a unanimous" decision," said Coleman, who with MacMull works in Archer's Hackensack, N.J., and New York City offices. "If the court had split, we would have ended up with more controversy.
"I believe that the court, speaking through this case, was very, very cognizant of their cultural role in our country, and with what's going on in the media and social media [regarding] free speech and censorship," he added.
The decision, MacMull said, was a "reiteration of our bedrock principles underlying the First Amendment. Applying those principles to a trademark may be something new, but it's not a departure."
To prepare for his first Supreme Court appearance, "John spent weeks hunkered down with the briefings and underlying materials, and we participated in a number of moot court sessions," Coleman said.
"It can be brutal, but it gets your chops up."
Preparation "is the key to getting your game face on before you go into the arena," said Connell, describing the opportunity to argue a case in front of "the finest legal minds in the country" as an "exquisite" privilege.
"I feel a real sense of pride not simply in having appeared before the court, and won the case … but in having made a contribution that truly benefits the populace at large," he added.
I asked Connell, whom I've known professionally and personally for 25 years, whether there is irony in the court's decision that federal restrictions purportedly aimed at protecting certain groups or individuals from disparagement ended up abridging an Asian American band's constitutional rights.