Amicus With Dahlia Lithwick – "Immunity in High Places"

Date: January 21, 2017
Host: Dahlia Lithwick
Guests: Simon Tam (The Slants), Rachel Meeropol (Center for Constitutional Rights)

Episode Overview

In this inauguration-week episode, Dahlia Lithwick explores two major Supreme Court cases that intersect with critical issues of free expression, minority rights, and government accountability in the early days of the Trump administration. The episode features in-depth interviews with Simon Tam, founder of the Asian-American band The Slants, about his group’s struggle to trademark its name against government claims of disparagement, and with civil rights attorney Rachel Meeropol about suing high-level Bush-era officials for abusive post-9/11 detention practices. Through these two cases, Lithwick and her guests interrogate the limits of government power and the legal protections available—or not—to marginalized groups.

Segment 1: The Slants and Trademark Law – Power, Reappropriation, and the First Amendment

Guest: Simon Tam
Segment Start: 00:02

Background & Main Issues

• Context: The Supreme Court is considering the case of The Slants, an Asian-American dance rock band denied a trademark for their name on the grounds that it is disparaging according to the Lanham Act.
• Relevance: The case tests boundaries of the First Amendment, reappropriation of stigmatizing language, and the discretionary power of the US Patent and Trademark Office (PTO).
• Connection: The Washington Redskins organization is following closely, given parallels in their own trademark dispute.

Genesis of the Band and Name Choice

Simon Tam recounts the band's founding:

• Inspired by seeing Asian representation in "Kill Bill," Tam wanted to give Asian Americans visibility in music (03:10).
• The band name, "The Slants," was chosen to reclaim and subvert an old racial slur, making it a symbol of empowerment:

  “We could talk about our slant on life, what it’s like to be people of color, while at the same time using this outdated and obscure racial slur and turning it on its head.” — Simon Tam, (04:19)

Reappropriation: Does It Work?

• Tam addresses skepticism that reclaiming slurs reinforces their harm:

  “Every single sociological and psychological study ever done on reclaiming stigmatizing labels… you actually find that power shifts from the dominant group to the oppressed group, and that it actually increases self-confidence and empowers that group...” — Simon Tam, (06:15)

• He gives historical examples—from "Christian" to "queer"—of reappropriation’s effectiveness.

The Government’s Position and Perceived Contradictions

• The PTO argues a trademark for "The Slants" would suggest government endorsement of a disparaging term (09:03).
• Tam describes inconsistent application of the rule:
  • Despite community support and expert testimony that the name is not offensive, the PTO denied the trademark based largely on unofficial sources and superficial evidence.
  • The PTO justified this by saying the term only counts as disparaging in context:

    “Anyone can register a trademark for the Slants as long as they’re not Asian.” — Simon Tam, (12:19)

  • Tam highlights the problematic burden of inconsistent, identity-based standards.

Supreme Court Arguments: Viewpoint Discrimination, Vagueness

• Audio from SCOTUS oral arguments illustrates judicial unease:
  • Justice Kennedy frames the issue as one of viewpoint discrimination (13:55–14:28).
  • Justice Ginsburg points to the arbitrary outcomes in similar cases—sometimes "slant" or "hebe" is trademarked, sometimes not:

    “There’s also a large concern with vagueness here and the list that we have of things that were trademarked and things that weren’t.” — Justice Ginsburg, (15:03)

• Tam argues that law built around the most privileged leaves marginalized groups—the very people pushing for reappropriation—worse off:

  “If we write our laws and design them around the most privileged members of society… we forget about the people who don’t have the same resources... those tend to be members of the LGBTQ community and people of color.” — Simon Tam, (16:14)

The Government’s “Blessing” and Real-World Impact

• Justice Sotomayor questions the need for government endorsement:

  “No one’s stopping your client from calling itself The Slants ... You are asking the government to endorse your name to the extent of protecting it in a way that it chooses not to.” — Justice Sotomayor, (18:02)

• Tam retorts that registration is not “blessing” but a form of equity, particularly for marginalized business owners repeatedly denied protection for cultural reasons:

  “Laws shouldn’t just be about equality. They should also be about equity.” — Simon Tam, (21:30)

Critique from Within the Community

• Tam describes broad support from social justice organizations, but notes the worry among some that his victory could help others (e.g., the Redskins) claim protection for offensive names:

  “If we use trademark registration as a way to try and deter [hate speech]… what ends up happening is we chilling the speech and the social justice efforts of those trying to make a positive change for our society.” — Simon Tam, (23:24)

Segment 2: Post-9/11 Detentions and Accountability – Ziglar v. Abbasi

Guest: Rachel Meeropol
Segment Start: 24:23

Case Background and Key Issues

• Context: Ziglar v. Abbasi considers whether Muslim men held without cause after 9/11 can sue federal officials—including John Ashcroft, Robert Mueller, and James Ziglar—for abuse while detained.
• Key Legal Question: Does the Bivens doctrine, which allows suits against federal officials for constitutional rights violations, extend to their case?
• Significance: The case tests federal accountability at the highest levels, especially as new executive powers are debated under President Trump.

The Human Story: Amer Abbasi’s Ordeal

• Meeropol recounts her client’s arbitrary arrest and harsh detention:

  “He was arrested and designated as of interest to the terrorism investigation... placed in a solitary confinement unit... beaten by guards, harassed, kept from practicing his religion... until he was cleared of any connection to terrorism and deported.” — Rachel Meeropol, (26:41)

The Question of Immunity: Why Can’t Victims Sue?

• The government, under Obama’s DOJ, argues that even when officials "violate clearly established law," they should not be personally liable for damages (28:14).
• Lithwick and Meeropol explain the Bivens precedent:
  • Historically, Bivens enables suits against federal officials for constitutional violations, but the Supreme Court has narrowed this over years (29:25).
  • The episode probes whether the case at hand is a legitimate application or an unwarranted expansion.

Rights of Noncitizens and Lack of Remedies

• Meeropol clarifies that even noncitizens have the right not to be abused in U.S. detention, but access to federal recourse is hotly contested:

  “Nobody is arguing that my clients have different rights to be free from abuse in prison… That said, it doesn't necessarily mean that they have the same right to sue if that right is violated.” — Rachel Meeropol, (32:20)

Policy vs. Accountability: The Government Worker’s Dilemma

• Chief Justice Roberts raises the concern that personal liability could deter officials from bold action in crises (36:37).

  “We don’t want people forming policy to have to worry about… they’re going to have to pay if the policy is found infirm.”

• Meeropol responds that existing “qualified immunity” protections already shield officials acting in good faith:

  “Qualified immunity already provides that protection, and it is substantial protection.” — Rachel Meeropol, (38:21)

Judicial Perspective: No Blank Checks for the President

• Justice Breyer reflects on balancing crisis response with constitutional constraint:

  “There is no blank check, even for the president. And if there’s no blank check, that means sometimes they can go too far. And if they have gone too far, it is our job to say that.” — Justice Breyer, (43:30)

Stakes: Deterrence and the Trump Era

• Meeropol warns that a ruling against her clients would send a dangerous signal as new policies targeting immigrants and Muslims may unfold:

  “In a time when torture, when Muslim registries are talked about as legitimate politics policy options, this is an incredibly dangerous time for the court to send a message that federal officials could violate even clearly established law and not be held personally accountable.” — Rachel Meeropol, (45:25)

Closing Thoughts: Irony and Transitional Justice

• Lithwick and Meeropol note the irony of the Obama DOJ defending broad government immunity on the last day of that administration:

  “What the Obama administration is arguing for is incredibly broad, but that doesn’t mean it couldn't be broader. And I wonder what kind of argument I would have come up against if this had happened in February.” — Rachel Meeropol, (47:09)

Notable Quotes & Memorable Moments

• Simon Tam: “Anyone can register a trademark for the Slants as long as they’re not Asian.” (12:19)
• Dahlia Lithwick: “We sometimes become so obsessed with punishing villainous characters that we forget the collateral damage is actually experienced by marginalized groups.” (16:14)
• Justice Ginsburg: “There’s also a large concern with vagueness here… Take, for example, one had the word hebe, and that was okay in one application, and it was not okay in another.” (15:03)
• Rachel Meeropol: “Qualified immunity already provides that protection, and it is substantial protection.” (38:21)
• Justice Breyer: “There is no blank check, even for the president. And if there’s no blank check, that means sometimes they can go too far. And if they have gone too far, it is our job to say that.” (43:30)

Important Timestamps

• 00:02 — Introduction, post-inauguration context, cases previewed
• 03:10 — Simon Tam on the band's founding and choosing "The Slants"
• 06:06 — Discussion of reappropriation and empowering marginalized groups
• 09:03 — Dahlia Lithwick explains the Lanham Act and the PTO’s rationale
• 13:55 — Justice Kennedy's oral argument on viewpoint discrimination
• 15:03 — Justice Ginsburg on vagueness in trademark decisions
• 18:02 — Justice Sotomayor on the government’s role in “blessing” trademarks
• 21:30 — Tam addresses real-world harm of trademark denials to marginalized communities
• 26:41 — Rachel Meeropol details Amer Abbasi’s detention post-9/11
• 29:25 — Explanation of the Bivens doctrine
• 32:20 — Noncitizen rights in detention and legal remedies
• 36:37 — Chief Justice Roberts on chilling government decision-making
• 38:21 — Meeropol on qualified immunity
• 43:30 — Justice Breyer on “no blank check” for presidential power

Summary Takeaways

• Free Speech vs. Government Approval: The Slants case probes whether reclaiming slurs is empowering or harmful, and whether the government’s refusal to register certain trademarks constitutes viewpoint discrimination. The Court grapples with the arbitrary enforcement and impact of the Lanham Act on marginalized groups.
• Immunity in High Places: Ziglar v. Abbasi asks how far immunity should shield high-ranking federal officials for policies that cause harm, especially to vulnerable noncitizens. The conversation balances the risk of deterring crisis-era government initiative with the need for individual rights and redress.
• Broader Relevance: Both cases hold significant implications for the boundaries of civil liberties, especially as new political realities heighten debates on race, speech, and the accountability of power.

This episode provides a nuanced, timely exploration of how the law, courts, and those who interpret them shape (and are shaped by) struggles at the intersection of speech, identity, and government power.