Should We Be Able to Reclaim a Racist Slur – as a Registered Trademark? In this special State Bar of Texas podcast, host Rocky Dihr welcomes Simon Tam, a musician, author, activist, and entrepreneur, whose efforts to trademark his band name “The Slants” prompted a nearly 10-year long legal battle that eventually wound up in the U.S. Supreme Court. Rocky and Simon discuss:
- The Power of Reclaiming Culturally Controversial and Derogatory Terms
- What it’s like to bring a Lawsuit Before the U.S. Supreme Court
- The State of Free Speech
- The Landmark Supreme Court Ruling in Tam’s Favor
- The Relationship between Arts and Activism, and How to Create Positive Change with Lasting Impacts
Simon Tam is the the founder and bassist of “The Slants”, the world’s first and only all-Asian American dance rock band. Simon is also an author, activist, TEDx speaker and podcaster, who is passionate about changing the world with relentless optimism and compassion.
Rocky Dhir: This episode is brought to you by the generous support of LawPay, a Texas member benefit provider. Getting paid just got a whole lot easier. Check them out at LawPay.com. that’s LawPay.com for more details and now, onto the show. So, welcome everybody. The State Bar of Texas podcast. We are recording on site from the 2022 annual meeting in Houston, Texas. This is your host, Rocky Dhir. Joining me now, we have Simon Tam. Simon is probably one of the coolest guess we’ve had on this podcast. He is the founder of an actual, it’s an actual rock and roll band. I mean like this —
Simon Tam: That’s right.
Rocky Dhir: Yeah. Well it’s a lot of rolling, for sure, right? You guys are rolling to this city and that city.
Simon Tam: And a lot of anding too.
Rocky Dhir: And a lot of anding. So the rock is a part that we’re still —
Simon Tam: Yes.
Rocky Dhir: The jury as we say is still out as far as you’re concerned. Well, Simon gave the keynote address on the Friday, June 10 luncheon and let’s just say that if he’s not sure if he’s rocking, he certainly rocked it up there. So you had a great session up there.
Simon Tam: Thank you so much.
Rocky Dhir: It’s fun watching. Tell us a little bit about The Slants and what kind of music you guys do for those that maybe uninitiated and for those that are wondering and that may not know, The Slants is an all Asian-American band, okay? So before anybody says, “Oh my gosh, that’s an offensive term.” which is actually going to be part of the topic today. Let’s hear from Simon about the actual band itself. What kind of music do you guys do?
Simon Tam: We do kind of like synth-pop music, really influenced by the early 80s, like new wave music, like Depeche Mode, The Cure, New Order. We try and bring a modern rock and roll twist to it. So kind of like The Killers before they started to try and sound like Bruce Springsteen.
Rocky Dhir: Okay. We’re throwing some shade now, like this is this is getting controversial.
Simon Tam: I’m a fan of both The Killers and Springsteen, so it’s okay.
Rocky Dhir: Okay, okay. So it’s like, it could be seen as a compliment as well.
Simon Tam: Yeah, it’s like a (00:20:02) joke I guess.
Rocky Dhir: Yeah, yeah. Of course, of course. I’m so old and unhip. I’m always out. I’m never in. So that’s just how it is. So before we really get into the music itself, what really brought you here to the State Bar is that you’ve had, I guess we can call it a run-in with the law, although not on the criminal side but you’ve had a run-in with the law.
Simon Tam: Not that people know of but yes.
Rocky Dhir: Well, not that you’re willing to talk about on the record, right? So the name, The Slants, first of all, how did you come up with it and why did it get you in hot water with the law?
Simon Tam: Well, The Slants is kind of a nod to our community re-appropriating this term and trying to kind of seize power from its use. It comes from this like outdated stereotype that all Asians have slanted eyes when in fact we don’t. Not all Asian people have slanted eyes and we’re not the only people that have slanted eyes. So I thought what if we took this kind of outdated, false stereotype and turn it on its head. So we decided to do that and on top of that, it sounds like a cool 80s new wave band.
Rocky Dhir: It is a cool name, right? Like (00:03:11) of the —
Simon Tam: Yeah, and that’s the most the important thing when you’re starting a band. You got to have a good name and so —
Rocky Dhir: It’s like The Bangles, right?
Simon Tam: The Bangles, yes.
Rocky Dhir: I’m trying to think, like there was — was that Phil Collins band? Genesis.
Simon Tam: Genesis.
Rocky Dhir: Great name.
Simon Tam: That is a great name. It’s better than Phil Collins.
Rocky Dhir: It is. It is.
Simon Tam: He chopped the Genesis.
Rocky Dhir: Yeah, they did. I think it went downhill after that but he was — so you pick up on this cool name. Now, before we go any further. So, for those who may not have ever had the detrimental privilege of having actually seen me. I’m of Indian origin, right? My family’s from India. I was born there. When you say Asian, what does that mean to you? Because when you say an Asian band, it sounds like from your perspective, it’s mostly East Asian.
Simon Tam: Well, we’ve had folks from kind of across the board. It’s mostly been Southeast Asian just because I haven’t encountered too many South Asian musicians. Though we’ve had some like pacific islanders like Filipinos in there. I think we got Vietnamese, Korean, Taiwanese which is what my background is, Chinese, Japanese, so like a buffet. Like a little bit of this and that and we try and embrace that term. The term Asian, Asian Pacific Islander really is more of a declarative term of power. Like it originated in the 1960s and it was really the same, like, hey you know this broad geographic area that people choose to include some races but not others. We have very similar experiences and we need to work together to develop a political voice and power. So that eventually the rest of world started catching on realizing that we weren’t either of these desperate communities, like Chinese, Vietnamese, Cambodian, et cetera but we can actually work together to achieve greater results,
especially since we do experience many of the similar types of marginalizations from the systems.
Rocky Dhir: It’s interesting because when you say the term Asian, say in the U.K., they’re referring mostly to my type of Asian. They’re referring to Indians, Pakistanis, Sri Lankans. But then when you come here, people seem to associate the term Asian with mostly East and Southeast Asian and then I remember in college, when somebody would say, oh so-and-so’s Asian. I was like, “Well, I’m Asian too.” and they’re like, “No, you’re not.” And they like, “No, you’re South Asian.” And I was like, but how can we only get one part of the continent and everybody else gets the rest of the continent? And then what about Siberians, right?
Simon Tam: You know, I’m married to someone of Russian descent and —
Rocky Dhir: So does that come up?
Simon Tam: Yeah, because people are like, “How come you’re so obsessed with Asian culture but you married a white lady?” I was like, “Excuse me, did you know over 75% of Siberia is actually in Asia?” And it also just kind of goes to show how race is often times a social construct, that the lines we create are sometimes arbitrary and based in power and history and culture more than anything else. And so I think like that’s an important discussion we need to have as a culture.
Rocky Dhir: So when you decided to name your band The Slants, you said it was really an effort at redeeming and kind of reclaiming rather this term that was being used against you, right?
Simon Tam: Yeah, absolutely.
Rocky Dhir: That it’s being used to kind of bully and kind of cajole you when you were younger, and I think many, especially East Asian and Southeast East Asian folks have experienced that. Now, the U.S. Patent and Trademark office, saw it differently, right? And I know we won’t have time to go into all the details but they decided that you don’t get to use the name Slants, right? What was their reasoning behind that?
Simon Tam: Well, they decided that our name was disparaging to persons of Asian descent. They use this kind of thing called Section 2a of the Lanham Act which says you can’t register trademarks that are considered scandalous or disparaging and in our case, they said, “Hey, the term The Slants is disparaging to people of Asian descent.” And so that sparked a very, very long legal battle that spanned about a decade of my life for or so. It took us eventually to the Supreme Court.
Rocky Dhir: And after losing at almost every step of the way, finally, the Supreme Court saw things your way and they said, “No, you get to use this term and you get to have it trademarked.”
Simon Tam: Yeah, they unanimously struck it down as unconstitutional because of the First Amendment.
Rocky Dhir: So was it First Amendment grounds or was there some other aspects to the ruling that —
Simon Tam: Well, by the time we got to the Supreme Court, they limited all arguments to just the First Amendment.
Rocky Dhir: That’s all they were interested in.
Simon Tam: That’s all they want and did and talk about. Yeah and so we wanted, because they do believe that it was viewpoint discrimination and part of this is like saying it didn’t even hold up to strict scrutiny because like the program itself wasn’t necessarily a government-funded program. It’s funded by applicants at the trademark office and so they’re saying, but even if it were like under strict scrutiny, it wouldn’t even pass muster there.
Rocky Dhir: And the reason being that they’re saying you as an applicant have the right to call yourself whatever name you want presumably. So does that mean that if you were an all-white band or an all-black band or some other ethnicity, under that ruling, would that be okay for that group to then take a term like The Slants and if it was available to trademark it, or is it fact-specific based on who’s asking for it?
Simon Tam: No, so they actually struck down the disparagement provision. So, anyone can register any kind of trademark as long as it meets the criteria of it actually being a trademark. So you have to have things like secondary meaning, has to be like a unique product identifier and that sort of thing. So a lot of people assume that “Hey, this is going to open up like this floodgate of like, all these like racial slurs being registered trademarks.” But the reality is like, unless you actually have a unique product identifier, you can’t just go and register, I don’t know, swastika or something like that because that doesn’t qualify as a trademark and it’s very bad business to do that anyway.
Rocky Dhir: Well, sure.
Simon Tam: Yeah. So now, that kind of area and later on, like a year after mine, there’s another case in Ray Brunetti that struck down the scandalous and the immoral provisions of the Lanham Act. So now, the kind of content can’t be used as an excuse.
Rocky Dhir: Interesting. Okay, so now, you went through this and you mentioned this was like a decade of your life. That was basically, I guess it wasn’t dedicated but it was largely dominated by this this case. Do you think having gone through that,
did it kind of help kind of give you and your band a new purpose? Did it actually raise your profile? I mean, I guess for lack of a better term, was it good for your career as a musician to actually have gone through this or?
Simon Tam: Well, I think more than anything else, it was kind of a distraction from that. So, I actually walked away from being a full-time musician to pick up odd jobs to pay for all the filing fees along the way which started the crew pretty substantially, especially the Federal Circuit. And so, I also lost band members as a result because I saw more and more of my focus, my time, money and energy going towards the case and less of it going towards the band. And while it did raise our profile and things like certain intellectual property law publications and very geeky podcast and news articles, those audiences didn’t —
Rocky Dhir: I take offense to the geeky podcast.
Simon Tam: Yeah. It just doesn’t translate to like a rock and roll crowd. Like they wanted to hear me speak. They didn’t want to hear our band play or our music and so. it made it really difficult and I think it really kind of forced me to come to a reckoning like, was I an artist? Was I an activist? Could I be both and how was I truly expressing the values that I wanted to express? Is it through music or is it through these like legal battle? And I realized that just navigating that was a pretty difficult and arduous journey that took me like several years to kind of like process.
Rocky Dhir: So, what’s the answer? Are you a musician? Are you an activist? Are you something else? What?
Simon Tam: I would like to think of myself as all of the above. I used to think of arts and activism as two separate things but I realized that they’re very, very similar in so many ways like. They both involve envisioning a world that is different and that is better, and it both require a lot of persistence and work in order to bring that reality to life.
Rocky Dhir: Well, okay, so I was talking to you about this briefly before we started, before we actually got on air. And it’s that, for about the last year I’ve been doing stand-up comedy in the evenings and one thing I’ve noticed with comedy is that there are words that certain communities will use that others can’t. And so this issue of reclaiming, I’ve heard it before. So for example, with the black community. There’s a word. It’s the n-word and you’ll see black comedians using it all the time. There’s Chris Rock. There’s Dave Chappelle and there’s thousands that are less famous who are using that term fairly regularly and the reasoning being that it’s a reclaiming process. You said that for you, using the term slants was also an effort at reclaiming what once was a slur and might in some ways still be a slur to some people.
Now, the difference I see though is The Slants is now a term that the general public gets to use because it’s your name, right? Whereas the n-word, the general public still can’t use it. You’ve got to be a member of a particular community to be able to use that and do so credibly. Do you see there being — is it problematic to you that the term slants is now more available or do you think that defangs it? How do you reconcile that when we talk about this issue of racial slurs?
Simon Tam: Yeah. I think language is a very complex and murky area because it really depends on both intentions as well as shared definitions. And as a result, it’s kind of like this in between place of like what a phrase could be. Anyone can use any phrase and make it an incredibly offensive interrogatory term, just as other folks can take those same terms and make them terms of empowerment. Like, I think about the word queer. The LGBTQ community has fully embraced that as an empowering kind of term and there are many other terms.
Rocky Dhir: 40 years ago, that was a total slur against them.
Simon Tam: Yeah. When I was growing up, it was like a really horrific term to express but we see different people have different relationships with it and I think the important part is realizing that I think of words is almost kind of like a blade and then certain hands, it could be used to create harm and other hands, like a surgeon, it could be used to create healing. And for some people, their relationship with language is such that they want to re-appropriate and seize that power for themselves. And even if it’s, you refer to the term as the n-word, that just goes to show the power that it has because now we almost need to check in with that particular community and say, “Hey, is it appropriate if I use it in this context or not?” And that’s something that’s generally not done for groups that are traditionally marginalized.
Rocky Dhir: When you were giving your keynote, that was one of the thoughts that crossed my mind, that occurred to me.
That in essence and I don’t know if it’s good, bad, neutral or somewhere in between, but you’ve taken the term slants and you’ve made it more available. People can say it albeit in a non-offensive way, right? It’s referring to something positive.
Simon Tam: And to be fair, the term was never really offensive. Like it was actually appropriated by racist to use it in a racialized manner, just like many of the slurs that we have. They tend to be kind of neutral terms until someone interjects it with some kind of venomous like meaning.
Rocky Dhir: Which I guess that might take the terms slants and give it a distinction maybe from some of the other types of terms we’ve heard because some other terms are only negative.
Simon Tam: Yeah. And that’s what we say it’s like — yeah, we’re trying to take it back and say like, “Look, we you can’t just hijack language and use it to berate people with it.” We’re going to take it and do something vastly different with it. And the fact that even if people feel uncomfortable using the term, I think that’s good because it again forces us to have a conversation, like what do we mean by these phrases? What is our intention and what are we trying to communicate with them?
Rocky Dhir: I know we can talk about these types of issues all day but I don’t want us to get too far afield from the issue of the law and how your story kind of was impacted by the law and what we as lawyers can maybe learn from it. So as you mentioned, this took like a decade, right? And I think for a lot of lawyers, every single one that I know of, we always get clients who come to us and say, “Gosh, this just takes so long, this whole process.” Because we watch on TV, the case comes in on Monday and they’re in trial by Wednesday and they’ve got a verdict and they’ve appealed it by the following week and it’s done, right? It’s very quick when you watch it on television. You got to see firsthand how slowly the wheels of justice move. In fact, even when you had oral argument at the Supreme Court, it still took another six months or so before you actually got the decision. I guess there’s a two-part question there. First is as a client, how did you come to cope with that? And how did you get yourself through that and be able to deal with these long periods of just hurrying up and waiting? And then number two, for lawyers since you’ve been on the receiving end of that, how should we counsel our clients and how do we kind of help take them through that process of long waits?
Simon Tam: Yeah, I mean, I think for me, I thankfully had mentors who are just exceptionally gracious and who’d all spent their entire lifetimes working to bring dignity to other folks. So they knew that things change slowly. And I think slow change often times is better. It’s better than rushing things through because it demonstrates the need to carefully examine like the facts and think like, okay, how can this process be just?” Like what are we missing here? What are the things that we need to truly consider? On top of that, it’s being weighed against many, many other things. Like, I mean, it is important to me, but I can tell you that throughout that process, we were going through economic recessions, turmoils. There is a change in administration at the White House. There’s all kinds of things happening and people are like, “Hey, these are very, very big issues. Your trademark for your band is not super high on the priority list in terms of their hearts and minds.” And I got that.
And so, I just knew that like this is just a small piece of this ultimate puzzle and I think what attorneys can do as you’re working with client is like remind them of the much bigger picture. What is the larger fabric that you’re trying to construct? And to be in communication about like things that are happening, I think the toughest thing for me was always like, after we filed our brief, just waiting, waiting for months and just even a quick email saying, “Hey just to let you know, there’s no updates yet but we’re watching for it.” Like that can soothe a very anxious heart and the other thing that we could do is like I was thrown so much Latin and French. I was like, I don’t understand those languages. Please explain to me what Amicus brief or a sua sponte order to vacate actually mean? And I can Google it but honestly, it was not —
Rocky Dhir: But you want to hear from your lawyer, right?
Simon Tam: Yeah. I just wanted them to know that like, or for them to tell me it was okay and what I could actually do in that moment. If it was to just stand by and wait, that’s fine. If it was to rally support from community organizations, that’s great but I just needed to know what I could do in that waiting period.
Rocky Dhir: For you, what was the biggest surprise maybe of going through the legal process? Was it the wait or was it something else?
Simon Tam: The biggest surprise is probably the first time I got an invoice from a printer for like appellate printing at the Federal Circuit. And I was like, I have a printer. I have a stapler. Can I do this? And they’re like, “No, you have to use an appellate printer.” But I was like, it was thousands and thousands of dollars,
and it just shocked me and I was like, and I have to do this how many times?
Rocky Dhir: Right.
Simon Tam: Yeah, I think it was, even though the legal work was very generously provided to me. It was pro bono. Those court fees are just astronomical.
Rocky Dhir: So even with the attorney’s fees being waived, it was still something that was like it’s burdensome.
Simon Tam: It was very difficult. Yeah. I mean, just because there’s filing fees every time you communicate with the office. If they were trying some kind of legal tactic like, “Hey let’s file this particular motion.” I just was thinking like that’s another several like months of like income down the drain.
Rocky Dhir: How were you paying your bills during this time?
Simon Tam: I had a lot of side hustles, so I was teaching adjunct at three different colleges.
Rocky Dhir: What were you teaching? Was it music or?
Simon Tam: Business. Entrepreneurship, marketing. I worked at a non-profit. I mean, I was just finding whatever work I could find to try and pay for those bills.
Rocky Dhir: And so, now you said since this court case, you’re not as active musician anymore. Clearly, you can still play a guitar and you can still sing, but are you not out performing and touring anymore?
Simon Tam: We’re not touring as a full band anymore but my guitarist, Joe and I are composing music. In fact, we’re releasing a new album later this year but rather than like having our voices on every track, what we’re doing is we’re writing the songs and we’re inviting talent from the Asian-American Community across the country to sing and play instruments on it. And so, it’s a really vibrant and diverse album that’s allowing us to use our platform to give voice to other folks that we believe should get some more attention.
Rocky Dhir: You talked in your keynote about the way Asian-Americans were represented in film and in pop culture. And so, you’d put up a scene from Kill Bill where Lucy Liu walks in and she’s cool and to she’s yakuza and she’s sexy and vibrant, and I’m still waiting for something like that for the Indian-American Community, for the South Asian-American Community to show up in Hollywood but it’s instructive, right? To what do you what do you ascribe that? Why are our Asian-Americans in general not seen in that light of being cool and sexy and powerful?
Simon Tam: I think there’s not enough people behind the camera to fully appreciate or understand these cultures to write roles for them. When you think about like the few times that Asians and South Asians have appeared on screen in the last couple years, it’s all because of creatives who have been that driving force. Like the film The Big Sick or even Aziz Ansari. He had to show Masters of None. Like those have existed with the help, not only the talent in front of the camera but them choosing to go behind the camera and say like, let’s write these roles into existence and show that it’s done and that there’s a demand for it and that could be profitable.
Rocky Dhir: Yeah. I can’t tell you how often I get upset when I watch a movie, right, and they just miscast things, right? The tech support guy is supposed to be Indian and they don’t put an Indian guy in tech support. I’m like, come on. That’s our one thing. That’s our shtick, man. I mean, come on. Give it back to us. I want to reclaim it. But I mean all jokes aside, do you think things are getting better in that score or do you think we’re kind of stagnant?
Simon Tam: I think it’s getting better. I think progress is very, very slow. So one of the other things that I do on the side is I actually do act. I audition for roles and a lot of times, they’re like, my agent will come to me and say, “Hey, we got a character. It’s written for you.” And it says like, East Asian/South Asian/Hispanic/black. And I was like, I don’t think that’s written for me. And there was a very prominent show on Netflix that I auditioned for pre-pandemic and I thought it was going to happen but then they rewrote the character, now it’s white. So these processes do take time and I think because it was very comfortable for the writers to just fall back into that.
Rocky Dhir: Do you think it’s the writers or do you think society at large is still expecting to see a certain type of face on a character? I mean, is it the writers or — I guess, pretty more economic. Is it supply or is it demand?
Simon Tam: I think there’s a demand for it. We’ve seen it. I mean, clearly Crazy Rich Asians, it’s like one of the highest grossing romantic comedies of all time showing and defying the odds when studios were like, you need to have a main character who’s white and the director and the writers are like, no. They’re very, very persistent in terms of like the casting choices that they wanted to make. And that demonstrated like a demand for it.
Fresh Off the Boat ran for multiple seasons and every time we see people who look like us on screen it, if it’s good content, like I don’t want bad content. That’s representative. I mean, I guess that should exist too but like, when it’s really good, I think all people can see us as people and appreciate it. It’s not like — those movies wouldn’t have made money if it was only seen by Asian people. It’s like people across multiple racial and ethnic identities saying like, I see myself in these stories and I think that the industry needs to get on board with that more.
Rocky Dhir: So, I guess we’re starting to run a little bit short on time so I’m going to ask you one final question which is, I’m going to sound a little bit like NPR here, but what’s next for Simon Tam? I mean, you’ve talked about your trademark dispute. That’s obviously going to be something that’s always associated, at least with lawyers are going to look back and cite that case. Aside from that, where do you see the future for you? What do you think is going to be your next big project?
Simon Tam: Well, my passion right now is the nonprofit we started, The Slants Foundation. We’re funding or mentoring Asian-American artists from across the country and trying to help them build sustainable and scalable careers. I think that’s where my heart is right now, and also looking for ways that I can contribute that create more of those opportunities for our communities that are oftentimes underrepresented. So Joe and I, we just got accepted into a fellowship at the St. Louis Opera. We’re now writing an opera.
Rocky Dhir: Oh, congratulations.
Simon Tam: Oh, thank you.
Rocky Dhir: Wow. Can you sing opera?
Simon Tam: I’m not performing, we’re just writing it.
Rocky Dhir: Okay, good. There you go. Is it Italian?
Simon Tam: Nobody tells us to sing an opera.
Rocky Dhir: Will it be a Chinese opera? That would be kind of cool.
Simon Tam: Well, it will be in English and it’ll be synth-pop music. So it would be very much an Asian-American opera and we’re also developing a theater show as well. So we’re just trying to find different ways that we can be involved with creating art that can last in a way that allows other people to step in. And I think that’s also one of the big reasons why our album is designed in a way to allow other voices to shine.
Rocky Dhir: Absolutely. Well again, Simon, this was, this was a lot of fun but it does look like we’ve reached the end of our time for this program. I want to thank you Simon for joining us today.
Simon Tam: Thank you so much.
Rocky Dhir: This was a lot of fun and thank you for your keynote. I think it got everybody on their feet, so congratulations.
Simon Tam: Thank you.
Rocky Dhir: And if our listeners, if they have questions they want to follow up or let’s say we happen to get an Asian-American artist who wants to reach out and learn more. How can they reach you?
Simon Tam: You can hit me up at SimonTheTam on social or just my website, SimonTam.org.
Rocky Dhir: Got it, okay. Well, perfect. Well, that is all the time we have for this episode of the State Bar of Texas Podcast brought to you by LawPay. Thank you, LawPay. Also, thank you to our listeners for tuning in. If you like what you heard, please rate and review us in Apple Podcast, Google Podcast, Spotify, Amazon Music or best yet, your favorite podcasting app. I’m Rocky Dhir at the 2022 State Bar of Texas Annual Meeting in Houston. Until next time. Thank you for listening.