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Per Sable v. FCC[1], any restriction that is subject to examination of the content is subject to strict scrutiny. Strict scrutiny, where applied appropriately,

Per Sable v. FCC[1], any restriction that is subject to examination of the content is subject to strict scrutiny. Strict scrutiny, where applied appropriately, would mean that the government is very unlikely to devise a restriction on content without being able to show that the content of the speech being restricted weren't tantamount to incitation, treason, etc. You're correct that Congress may choose not to exercise that power, but they are prevented from being able to exercise that power arbitrarily, and especially not on matters of obscenity or indecency without passing(failing?) the Miller test[2], which this clearly doesn't, and "The Slants" arguably satisfies none of the conditions. [1] - https://en.wikipedia.org/wiki/Sable_Communications_of_California_v._FCC https://en.wikipedia.org/wiki/Sable_Communications_of_Califo... [2] - https://en.wikipedia.org/wiki/Miller_test https://en.wikipedia.org/wiki/Miller_test

lisper 9y ago
No one is disputing that the band has the right to call itself the slants, or any other offensive term they choose to use. But it is far from clear that they should be entitled to trademark protection for it, Sable notwithstanding. (Well, it's clear now, but it wasn't clear yesterday.) The government already exercises a lot of authority to control the content on the public airwaves, I don't see why trademarks should be any different. But I haven't had time to read the opinion yet. Maybe I will find enlightenment there.
- bmelton 9y ago
  I'm honestly convinced that, post-Sable, the FCC is poised to lose should anyone challenge their obscenity provisions, Miller test notwithstanding. Since then though, the FCC has been more prudent with what they go after, and the fines have are low enough that it serves everyone's interests to keep everything de rigueur. NBC doesn't want to have to worry about having to compete with smut on the public airwaves, or having to big against Pornhub in the next spectrum auction. Meanwhile, the FCC of course enjoys the presumption of authority over the airwaves with a quasi-plausible veil of content neutrality.

lisper 9y ago

No one is disputing that the band has the right to call itself the slants, or any other offensive term they choose to use. But it is far from clear that they should be entitled to trademark protection for it, Sable notwithstanding. (Well, it's clear now, but it wasn't clear yesterday.) The government already exercises a lot of authority to control the content on the public airwaves, I don't see why trademarks should be any different. But I haven't had time to read the opinion yet. Maybe I will find enlightenment there.

bmelton 9y ago
I'm honestly convinced that, post-Sable, the FCC is poised to lose should anyone challenge their obscenity provisions, Miller test notwithstanding. Since then though, the FCC has been more prudent with what they go after, and the fines have are low enough that it serves everyone's interests to keep everything de rigueur. NBC doesn't want to have to worry about having to compete with smut on the public airwaves, or having to big against Pornhub in the next spectrum auction. Meanwhile, the FCC of course enjoys the presumption of authority over the airwaves with a quasi-plausible veil of content neutrality.