104 Iowa L. Rev. 1421 (2019)

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Abstract 

This Article uses a case study to explain how empirical analysis can promote judicial modesty. In Matal v. Tam, the U.S. Supreme Court invoked the First Amendment to strike down the Lanham Act’s bar on federal registration of “disparaging” trademarks. The Tam decision has great constitutional significance. It expands First Amendment coverage into a new field of economic regulation, and it deepens the constitutional prohibition on viewpoint-based speech regulations. This Article contends that empirical analysis could have given the Court a narrower basis for the Tam result, one that would have avoided the fraught First Amendment issues the Court decided. The Tam challenge came from an Asian-American rock band that calls itself “The Slants”—as a means to reappropriate an anti-Asian slur. The authors performed an original empirical study of how Americans understand the term “slants.” The data show that both Asian-Americans and non-Asian-Americans understand the term variably based on its context. Both groups recognize the term’s derogatory meaning, but they also understand the use of the term by an Asian-American band as an effort to reappropriate the derogatory term. This contextual variation in how Americans understand the term “slants” exposes the incoherence of the Lanham Act’s flat treatment of certain terms as uniformly “disparaging.” That incoherence supports the legal conclusion that the disparagement bar is unconstitutionally vague. A finding of vagueness in Tam would have achieved relative constitutional avoidance, invalidating the disparagement bar on a narrower, less constitutionally significant ground than the actual decision’s First Amendment analysis. Constitutional avoidance serves judicial modesty values that courts and our broader legal culture tend to portray favorably. This Article’s study and analysis provide a model for other situations in which empirical data can give courts a path to constitutional avoidance.