Back to Home

Prologue

Oyez! Oyez! Oyez!

 

It’s a blistering cold winter morning. Even inside this concrete mammoth, I can hear the wind howling outside.

 

I’m with my band, using a private side entrance to go through security for the Supreme Court of the United States. It’s like TSA PreCheck at the airport: we get to keep our shoes and coats on while walking through the metal detectors, and everything else is placed on a dirty conveyor belt to be examined by security officers staring at CRT monitors. More importantly, we get to skip the line.

 

The queue outside is several thousand long. It’s filled with people who have waited on the sidewalk all night, including professional line-standers who have been hired to hold a place like they would for a new iPhone release or U2 concert tickets, hoping to be one of 250 who will be able to sit inside the courtroom. That was almost me. For the weeks leading up to this day, I wasn’t guaranteed a place inside the Supreme Court even though the case being argued, Lee v. Tam, literally has my name on it.

 

For the past eight years, I’ve been locked in a battle with the U.S. government over my band’s name. That’s right: nearly a decade of slugging it out with the authorities because we wanted to call ourselves the Slants, an identifier that represented self-empowerment while providing a bold portrayal of Asian American culture. That portrayal made bureaucrats uncomfortable; they sent over three dozen attorneys working for the Department of Justice and United States Patent and Trademark Office to silence me, fueled false rumors about my work, and put me through perpetual legal drudgery, in hopes that I would give up. But I didn’t. I believe that the Slants is a name worth fighting for.

 

We make our way up the stairs and through another set of security gates until we finally walk into the Supreme Court. In my life, I’ve only experienced this level of surveillance measures while working with the government: playing inside a maximum-security prison and performing on active military bases.

 

White marble columns adorn all sides of the room. It’s the same Greco-Roman style as the entrance and hallways leading up to this point, almost teasing the Gladiator-like combat to come. Behind the columns is a plush red velvet curtain, and a large gold clock hangs above the raised dais where the justices will sit. A gold rail cuts through the middle of the room, dividing reserved seats for members of the court (with padded chairs) and attendees who are simply observing (hard wooden pews).

 

Everything about the place screams tradition, a sense of the old. In a less cynical world, EQUAL JUSTICE UNDER LAW, the words inscribed on the front of the building, would mean something in this environment. They would be a proclamation of truth and the values being represented by the government. But it’s January 2017, and we’re in a new world now, one where Donald J. Trump will be sworn in as president in a few days. We’re now living in a country where First Amendment rights, free speech and the freedom of the press, are in danger.

 

“It’s smaller than I thought,” I tell my bandmates, “At least the Federal Circuit had balcony seating.”

 

The Court Marshal guides us to the second row of pews, leaving the first row completely empty. As people begin taking their seats around us, they start making the connections in their head: a group of four Asians who look fairly young sitting together. It must be the band! I can hear whispering and feel the fingers being pointed in our direction behind me. A group of law students nearby finally asks, “Are you in the Slants?”

 

The question brings a smile to my singer’s face—he loves attention and being recognized—the spotlight is something that nearly all lead singers enjoy. As a member of the band, Ken is here in solidarity. But this really isn’t his fight—he walked into the ongoing case two years ago, after I had already been carrying the torch for almost six years. If it weren’t for my constant preaching about the right to claim our identity, I’m not sure how much the issue would even matter to him. That much is evident when the students begin asking him about our case, and he starts diverting to me.

 

I provide the same answers, anecdotes, and stories to them without much thought because they are the same questions that I have been answering for years. At this point, I’m like an ATM of rehearsed answers on the name of the band, Section 2(a) of the Lanham Act, the nuances of trademark registration, and perhaps more importantly, how our struggle was different from the Washington Redskins. I could answer those questions in my sleep. Most of these answers could be found online with a simple search, including my own Op-Ed pieces, but they want to hear it straight from the source. In the eyes of this introvert, it’s a withdrawal of my energy and attention.

 

The people in attendance are genuinely interested in what happens today—certainly enough to wait all night through sub-freezing temperatures to be here. But they were here for entirely different reasons. They were here for a spectacle, to witness history in the making. I could hear the people behind me saying, “The Supreme Court justices are like mythological creatures. We hear about them all the time but it’s so rare to actually see one in person.”

 

Then, someone signals the Court Marshal. It’s Colleen Connell, the wife of the attorney arguing on my behalf this morning. She’s pointing at me as she asks, “This is Simon Tam, the litigant in this case. Shouldn’t he be sitting closer? At least in this first bench?” He looks a little annoyed but politely explains that he’ll ask. A few moments later, he comes back and says, “I’m sorry, but we’re reserving these seats in case someone important shows up.”

 

I chuckle. It is a spectacle indeed. I’m nervous even though I know that oral arguments are just a charade. People like to pretend that the sixty minutes spent before the justices of the court determine the outcome of a case that has been winding through the legal system for years. They don’t. Arguments are an old tradition that provide a more exciting public show for what is really happening underneath: thousands of pages of legal briefs being summarized by court clerks, hoping to provide legal analysis of what is being argued. Most of the justices walk into the room already knowing which way they’re leaning on a case. Oral arguments are just a way to tease out the extremes of the law, and sometimes, to mess with attorneys as a cat would batter a toy. Our government loves hanging on to old traditions, whether they are effective or not.

 

We are here because of the law I helped take down just a year earlier, the disparagement provision of a rather obscure bit of trademark law. The original clause was written in 1939 and became part of the Lanham Act passed by Congress in 1946, deep in the era of Jim Crow laws. It was never intended to protect racial and ethnic groups—segregation was still alive and well. The Trademark Office was giving out registrations to offensive marks for candy, sweets marketed with names like “Black Sambo,” “Golliwog,” and “Wampum Injun.” And of course, the government approved over a dozen registrations for “Redskin.” But in the last few decades, when communities of color and LGBTQ groups started filing applications for terms that were being reappropriated, the government used the disparagement clause of the Lanham Act to prevent some trademarks from being registered (like DykeDolls for lesbian dolls). The Lanham Act was used to deny representation for marginalized identities. They created a narrative that trademark registration was intended to protect the sensibilities of the public. They argued that this law was the line of defense, even though they were discreetly using it to silence attempts to shift the discourse on language.

 

I argued that this violated our First Amendment rights. Isn’t choosing our own identity the very basis of all free expression? A federal court enthusiastically agreed with me and struck down this outdated law. But the Department of Justice filed suit and dragged me here, to the Supreme Court: the final boss stage of the legal system.

 

I lean back against the cold, hard bench, as I think back on the journey of the band that got me here. It isn’t the typical story of sex, drugs, and rock n’ roll. From our inception, the Slants have been about challenging stereotypes, including those for a touring band. The years were far more complex, fun, and weird than anything that would be discussed before the court today. From crashing anime conventions to facing white supremacists, standing up to childhood bullies as well as the government, that journey was fueled by my deep belief that apathy is not compatible with love. But I didn’t begin there. I originally just wanted to create the representation I found lacking for Asian Americans, and in doing so, stumbled my way through challenges designed to keep people from disrupting the status quo. It’s ironic: I would have never found myself here if it weren’t for the government trying so hard to suppress that desire for representation. I found my identity through this struggle. Only a handful of cases have been brought by Asian Americans before the U.S. Supreme Court, yet each one shaped our nation in significant ways. Like it or not, my name would soon be added to the list.

 

I direct my gaze to my right and see my band, all dressed in our black suits: Joe, Ken, and Yuya. It’s an entirely different lineup than when I first started this band. Back then, we were eager to share our brand of 80s synth-pop with the distinct swagger of late-70s punk rock. Getting started as the world’s “first and only all-Asian American dance rock band” revealed aspirations larger than life. But frustrations over our legal troubles, drunken fisticuffs, and an aging lineup caused the band to slowly shed members until the Slants became something entirely new. No one ever tells you that part of the cost of fighting a Supreme Court case might include losing some of your closest friends. That isn’t in any of the fine print. But I’m still here, wearing my suit and my lucky dinosaur socks, hoping that once this all ends, we can finally just be a band again . . . or whatever a band actually becomes after they’ve resolved a major legal case in the high court.

 

Only one act has ever been to the Supreme Court before: in 1994, 2 Live Crew received a unanimous ruling in their favor, which paved the way for hip hop artists to freely use parody in their music and ensured lyrics like “Big hairy woman all that hair it ain’t legit; ‘cause you look like Cousin it” would adorn the shelves of every law school library in the country. Maybe one day, textbooks will contain a refrain from our song dedicated to the Trademark Office, “From the Heart,” which we had sung on the steps of the Supreme Court just a few days earlier.

I shake my head while I daydream of that idea. Probably no other band subjects its lineup to workshops around social justice, diversity, and inclusion like I have. That work brought us to soaring heights, like being asked by the Department of Defense to spend our holidays performing for troops serving overseas. Most recently, we were invited to join President Barack Obama’s Act to Change Initiative to fight bullying in schools. These officials were all in D.C., but none of them showed up for us on our day in court. The government was keen on calling our band when they wanted to reach Asian Americans, proclaiming us champions of the community. The same government was just as quick to toss us aside, calling us racist against our own community, when they wanted to highlight the dangers of free speech.

 

Racist. Hero. Stubborn. Fighter. Chink.

 

I’ve been called many things on the way to this moment, but ironically, I’ve never been called “a slant.” Really, I just prefer the term “troublemaker.” It was the term given to me by our country’s government, one that I proudly reappropriated into my own identity. I stare resolute at the lecterns before me, wishing that the justices could hear the deeper story behind this band, the one that couldn’t be expressed in our legal briefs and the one that was relatively ignored by the media. Instead, all they wanted to talk about was football—the racist name of one team in particular. Even though I am arguing for freedom speech, I can’t argue on my own behalf—I can’t even sit anywhere near my attorneys.

I look at the row in front of me and think back at the Court Marshal’s words, we’re reserving these seats in case someone important shows up. The row is empty. Apparently, no one is more important today than me. But my scale is different: no one is more important and I’m no more important than anyone. Equal Justice Under Law. This case is much bigger than me or my band; the law that I’ve been fighting is one that has been suppressing the rights of marginalized communities for years.

 

It’s also been touted by the government as proof that they indeed do care about racism. Look! We’re fighting hate speech by not allowing offensive trademarks to be registered! We’re protecting you from yourselves! By focusing on offensive words, they were hoping to distract us from harmful policies.

 

The clock strikes 10:00 a.m. precisely. The Court Marshal is now standing before us and invokes us to stand. He proclaims loudly,

 

“The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.”

 

The shaman-like incantation swirls in my head as I hear the ceremonial mallet smack against hardwood, the sound reverberating through the courtroom like a snare drum. I look around the room, my eyes landing on many familiar faces. There are several law professors whose classes I’ve guest lectured in as well as legal counsel from the ACLU, Pro Football, the CATO Institute, and the U.S. Chamber of Commerce. I even see an attorney that I went on a date with once—I met “LovelyLawyer84” online—but she decided to pursue a more interesting prospect. Funny these things come back around. I look back at the Court Marshal.

 

Oyez! Oyez! Oyez!

 

Each time he says this, it sounds like oh-yay as in, “Oh, yay! We’re finally starting!” The gavel hammers down a few more times and the room uniformly and unceremoniously begins to sit down. I look at the justices in front of me and try to get control of my wandering mind, but only one thing comes resurfacing each time: What the fuck is an oyez?