by Simon Tam
A few years ago, my band, the Slants, was invited to perform at the Oregon State Penitentiary. I never thought that this simple concert would become a direct parallel to my legal battle, one that would eventually lead me before the Supreme Court of the United States. To many, sending an all-Asian American dance rock band into a prison with a significant neo-Nazi population seemed like an invitation for disaster. However, I didn’t question the decision until we actually showed up and were handed bright-orange vests to wear over our clothes. One of my band members asked if it would be okay to take them off mid-concert, since our suits and vests could get quite warm.
“Sure,” the guard said, “but if an incident occurs, the orange vests let the sentry towers know who to avoid shooting.” Got it: keep the safety gear on.
We continued through security with significant precautions at every step. There were bars and armed guards everywhere. The clanging of the doors would echo loudly for a while every time one was opened or shut. It was a place designed for containment, not comfort.
Eventually, we stepped onto a large field surrounded by concrete walls, a place called “the big yard.” The stage was set up at one end with a thin line of plastic police tape stretched across the front—the only thing separating us from nearly two thousand convicted criminals. We’d been scheduled to perform the year before, but a large riot had put the place on lockdown, and so they’d postponed the concert. This fact didn’t do much to settle my nerves. I admit I was making assumptions about the kinds of people who are sent to maximum-security prison: murderers, rapists, and drug dealers.
While we played, a small crowd assembled in front of the stage, and a larger one walked around the yard, enjoying the only hour of outdoor time they’d have for the day. As we launched into our cover of “Paint It Black,” hundreds of prisoners jumped and cheered.
At the end of the concert, a small group of shirtless white men approached the police tape. Several of them were completely covered in swastikas and white pride tattoos. A large man in front came up, towering over me. He seemed nervous as he handed me a piece of paper and asked for an autograph.
“It’s for my daughter,” he said. “I want to tell her that I met the band.”
He went on: “I know I have these tattoos, and I know what you must be thinking. I’ve made a lot of mistakes in my life, and they’re mistakes that I don’t want my little girl to make.” He said he wanted to show that he could learn, that he could change his heart and mind even if he couldn’t change what was stained into his skin.
Assumptions can only change with exchanges.
That concert was one of the most powerful experiences of my life. I went in with all kinds of assumptions, but those changed when we talked with the prisoners. Assumptions can only change with exchanges: a cultural exchange, an exchange of perspectives. But this exchange would have never took place if either of us rejected the opportunity to engage.
I started the Slants nearly a decade ago because I wanted to change people’s assumptions about Asian Americans. I experienced racial prejudice for most of my life—from being violently attacked to dehumanizing encounters based on absurd stereotypes from teachers at school. But when you combine the great discomfort that people have when talking about racial injustice to the fact that the Asian American experience is rarely considered in these discussions, I realized that opportunities to do so would be extremely rare. I wanted to give racism a chance—a chance for discussing its existence in a way that would be compelling, honest, and yet, subversive.
I remember watching Quentin Tarantino’s Kill Bill on DVD in 2004. I paused the film during the iconic scene of O-Ren Ishii and her gang of Crazy 88s walking into a restaurant—not because of the gore or the soundtrack, but because I realized it was the first American-produced film I’d seen that depicted Asians in a cool and confident manner. The film industry was bad, but the music industry may have been worse: I couldn’t think of a single mainstream Asian-American music artist.
I wanted to change that with the Slants, the world’s first and only all-Asian American dance rock band. Not only did we create our own brand of ’80s-inspired synth pop, but we also got involved with social justice: we toured the country fighting stereotypes about Asian Americans, leading workshops, raising money for charities, and sharing our culture through our music. Letters of support from marginalized communities poured in.
During this time, our attorney recommended that we register the trademark on our band name, something that’s commonly done for national acts. However, the U.S. Patent and Trademark Office, or USPTO, swiftly rejected our application, claiming our name was disparaging to Asians. To support their claim, officials used sources like UrbanDictionary.com, a photo of Miley Cyrus pulling her eyes back in a derogatory gesture, and anonymous posts on Internet message boards using the word slant as a racial slur.
I named the band the Slants because it represented our perspective—or slant—on life as people of color. It was a deliberate act of claiming an identity as well as a nod to Asian-American activists who had been using the term for decades. Initially, I supplied thousands of pages of evidence, including letters of support from community leaders and Asian-American organizations, independent national surveys, and an etymology report from one of the country’s leading linguistics professors. The trademark office was not swayed. They called our effort “laudable, but not influential.” With just a few keystrokes, they wiped away the voices of thousands of Asian Americans.
I named the band the Slants because it represented our perspective—or slant—on life as people of color. It was a deliberate act of claiming an identity as well as a nod to Asian-American activists who had been using the term for decades.
We started digging deeper. Rather than focusing on whether or not Asian Americans actually believed our use of the word to be disparaging, we started questioning why the USPTO accused us of using a racial slur to begin with. After all, slant can mean any number of things, and the racial connotation was relatively obscure. In fact, over the years, the trademark office has received eight hundred applications that include variations of the word, but not one was rejected for being racist toward Asians—until an Asian applied.
Trademark officials admitted they considered the word a racial slur in our application because “it is uncontested that applicant is a founding member of a band composed of members of Asian descent.” They then presented evidence, including photographs of Asian people on our website, a “stylized dragon” on an album cover, and an illustration of an Asian woman on an album cover.
Ironically, our band was too Asian to use the word slant. USPTO thought people would draw the conclusion that our band’s name was a reference to our ethnicity. In other words, anyone who wasn’t Asian could register a trademark for slant without it being considered a racial slur. It was startling and deeply frustrating to realize that despite trying to use language to help protect my community from stereotypes and racism, I was being denied the right to trademark my band’s name because of my race.
Through this process, I’ve come to understand that laws are designed to maintain the status quo. But shifts in language and identity politics require that bureaucracies move beyond simple cultural competency and instead navigate inconvenient and unknown waters. This unknown disrupts the status quo and that scares government officials, pushing them into territory where they feel obligated to uphold outdated policies, even if they are rooted in inequity.
Some may argue that the trademark office’s actions were not racist. Racism doesn’t only look like white supremacists burning crosses or wearing white hoods. Racist actions don’t have to fit a stereotype of what racism is to be racist. What people often forget is that racism is both a belief and a system. Fighting ideologies is one thing but dealing with an institutional arrangement where policies and procedures afford or deny benefits on the basis of race is a different matter entirely. It’s far more complex because of the power dynamics involved.
Denying a right based on race is the very essence of systemic racism. It is evidence of institutionalized discrimination. Even if the intentions are sincere, the impacts do fall along racial lines, targeting traditionally marginalized communities. Forcing people to go through a long, expensive, and degrading appeals process in the name of protecting us from ourselves is an unjust system And like all other systems, this is one that is resistant to change.
People often forget that racism is both a belief and a system.
The government shouldn’t be able to decide how a group can define itself; that right should belong to the community. It’s clear in example after example that the dominant group is not only inconsistent, but also sometimes completely off base, when it comes to understanding the sentiments of people who have been marginalized for centuries. While the government might claim to have noble intentions, those intentions don’t matter if the impact is being experienced by the marginalized. A true social justice framework focuses on equity, which I define simply as giving more options to those who have the fewest.
We were fighting for more than a band name: we are fighting for the right of self-determination for all minorities. Things like this are the subtle indignities that people of color have to face every day: slights that don’t seem big enough to make a fuss over, yet continually remind us that challenges to the norm are not welcome (read: white, homogenous culture). One of the more amusing instances was the trademark office’s denial of the Japanese word for luck—fuku—as a restaurant name, for fear that it might look like an obscenity. The more devastating outcome of several rejections against activist-artists reappropriating language led to them shutting down their businesses.
The government could make the claim that it doesn’t have enough resources to do research on every application that comes in, or that it has to wait for a massive shift in popular culture over sentiments toward a particular word, phrase, or image. However, this subjective application of the law brings a chilling effect to free expression, especially on the part of individuals who wish to convey irony, neutralize slurs, express artistic or political ideals, or engage in parody—the very tools which neuter malice and drain the venom from denigrating terms.
Through this process, I’ve come to understand that laws are designed to maintain the status quo. But shifts in language and identity politics require that bureaucracies move beyond simple cultural competency and instead navigate inconvenient and unknown waters.
And it is subjective indeed: The USPTO has refused “wanker” for use on clothing, but approved it for beer. “Pussy Power” was rejected for entertainment services, but “Pussy Power Revolution” was considered acceptable for clothing. “Madonna” was rejected for wines on the grounds that it would be scandalous, but a different “Madonna” application was then approved. And nearly every racial slur known for Asian Americans has become a registered trademark at some point: jap, Oriental, chink, slope, and, of course, slant.
The fact of the matter is that this law has been unfairly targeting ethnic minorities since it was drawn up in the 1940s, and overcoming it would be a small but important victory in the greater battle for equality. For anyone who has been marginalized because of race, sexual orientation, gender, age, religion, or anything else, this would be especially meaningful because the law says that our communities should have the right to set the tone on appropriateness—rather than some disconnected government agency that believes it should protect others from uncomfortable or disagreeable ideas.
Eventually, we won. It took nearly eight years of fighting to do so. The Supreme Court unanimously struck down the provision we were up against, Section 2(a) of the Lanham Act. But rather than seeing this as a win for communities trying to claim their identities, many wanted to reframe it around a dominant narrative: fear of the Washington football team or a flood of hate speech. Often, dominant groups preserve power through framing the narrative in terms of fear and dividing minority communities along perceived injustices toward each other.
This fear led to the assumption that there would be almost no legal recourse to have the Redskins’ trademark registrations cancelled. However, it is rarely discussed that even if the Washington’s registrations were revoked, they would still have nearly full comprehensive protection thanks to brand equity and other intricate IP laws. Folks never wanted to point out the flaw in this legal strategy. For instance, the same law that could cancel the Redskins trademark might also be used to cancel the NAACP’s registration, since the phrase “colored people” in the organization’s name could be considered disparaging by many people. We shouldn’t let the fear of some offensive trademark registrations trump the rights of marginalized communities. And we most definitely should not leave the legislation of morality, language, and identity to dominant groups in power who do not have the experience or understanding of those communities. Because if we believe that the trademark office has been protecting minority groups, then we’ve all been fooled.
Assata Shakur states: “Nobody in the world, nobody in history, has ever gotten their freedom by appealing to the moral sense of the people who were oppressing them.” We cannot rely on a lengthy and expensive legal process by the Trademark Office as the filter for hate in our country. As it is being applied in our case, this law is discriminatory. It only maintains the norm, and that norm is white homogenous culture, with no recognition of people who are practitioners of change.
If we believe that the trademark office has been protecting minority groups, then we’ve all been fooled.
We live in a country where equality has been defined by white, heterosexual, cisgender men for hundreds of years, and it’s time to bring other community groups to the table. While the war against hate is waged on the desks of trademark attorneys, the collateral damage is cuts to our own freedom and agency as people of color. We should not be afraid of using self-expression to catalyze change. If the government truly cared about fighting racism, while using the trademark office as its vehicle to do so, why not begin by cancelling the registrations of white supremacist groups?
Artists don’t begin their careers thinking about how to dismantle laws that they aren’t even aware of, and I’m certainly not an exception. When I first started the band, the intention was to take on stereotypes about Asian Americans, inject pride into our ethnic heritages, and increase our community’s visibility in the entertainment industry.
But what I’ve come to see is that assumptions can be efficacious. The trademark office assumed that our name was inherently a racial slur and that the Asian-American community would feel disparaged by it. When our community loudly expressed otherwise, officials assumed that approving our name would set a precedent that would create more paperwork and open the door for other controversial trademark applications. What if, instead, they treated us as applicants of any other race, as people instead of ideologies? What if our government’s laws reflected the capacity for people, entire communities, and words and identities to change?
As it is, the legal system surrounding trademark law feels like a prison created to keep disruptive ideas from coming into the mainstream. Officials may believe they are protecting the general public from harm, but they are actually erecting walls that discourage people from mobilizing for social justice by using language to reappropriate ideas. Just because we don’t understand or agree with how someone creates social change doesn’t mean we should prevent it. When it comes to social justice, we should ask questions and have meaningful conversations instead of making assumptions. This also includes assumptions on decisions made at every level of public office, from city council meetings to the Supreme Court. We should be asking: “How can this provide more to those who have the fewest options?” This means not allowing the focus on bad language to distract from bad policies. After all, racial slurs are meaningless in the absence of a racist system.
We can change this pattern. We have an opportunity to develop equity and justice into a practice rather than let it remain an afterthought. Begin by having an uncomfortable conversation about race, begin by giving racism a chance to exist. For some, like my band, this manifests by deliberately using language as a vehicle for calling attention to ownership of language and identity. For others, parody, satire, and wit are used to neuter malice. The ability create social change and advancing civil rights is rooted in constitutional liberties. With the tree of inequity, we should focus on the roots—the system and the culture that upholds it—and not simply hack at its outgrowth. For me, this was a name worth fighting for because of the dignity it provides by granting the marginalized access to self-identification. But then again, my view is a little slanted.
Simon Tam is an author, musician, activist, and self-proclaimed troublemaker. He is best known as the founder and bassist of The Slants, the world’s first and only all-Asian American dance rock band. His work has been highlighted in over 3,000 media features across 150 countries including The Daily Show with Trevor Noah, NPR, the New York Times, and Rolling Stone. Simon has been a keynote speaker, performer, and presenter at TEDx, SXSW, Comic-Con, The Department of Defense, Stanford University, and over 1,200 events across four continents. He has set a world record by appearing on the TEDx stage 13 times. He was named a champion of diverse issues by the White House and worked with President Barack Obama’s campaign to fight bullying. He recently helped expand freedom of speech through winning a unanimous victory at the Supreme Court of the United States for a landmark case in constitutional and trademark law, Matal v. Tam.
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