Not by The Slants’ frontman.
What follows comes from the Introduction:
By the standards of the Supreme Court of the United States, I am The Slants’ frontman. I am not; I have never been. I am the bass player—the founder, the bassist, and the person who spent the better part of a decade challenging the federal government over the right to use our band’s name. Anyone who has ever listened to our music, seen one of our performances, or spent a few moments looking up our name would understand this. Yet the Court’s ruling in Matal v. Tam asserts a different truth, and because of that, so do the law-review articles, the IP textbooks, and the classroom discussions that have developed around the case in the years since its decision.
I present this not to embarrass anyone. I present it because it serves as a precise and verifiable illustration of something that practitioners and scholars who study Matal v. Tam should grasp: the legal record of a landmark case is not identical to what actually happened. The opinion is not the case. The briefs are not the strategy. And the story that has become entrenched in the legal literature—about what this case was, how it evolved, and why the decisions made along the way were made—contains gaps and errors that only a firsthand account can correct.
This piece is that account.
Almost a decade has passed since the Supreme Court unanimously struck down the disparagement clause of Section 2(a) of the Lanham Act. In that interval, Matal v. Tam has been cited in hundreds of law-review articles, leveraged in subsequent First Amendment cases, and included in IP and constitutional law curricula across the nation. Scholars have examined the decision’s doctrinal implications, its influence on later cases like Iancu v. Brunetti, and its effect on how marginalized communities register marks. What they have not done—because they could not—is recount how the case was actually formed.
That account is more intricate, and more instructive, than the legal scholarship suggests. Matal v. Tam is treated as a First Amendment case, but it was not originally crafted as such. It became one through a sequence of institutional interventions—each narrowing the legal question, foreclosing certain arguments, and ultimately transforming a trademark dispute about cultural identity into a constitutional referendum on government speech regulation. Understanding that transformation is not merely of historical interest. It reshapes how practitioners should approach impact litigation involving marginalized communities, how law professors should teach the case, and how future litigants should consider what they are really fighting for when they bring a case that institutions choose to use for their own purposes.
The errors in the legal record are the starting point, because they signal that something is missing.
