The battle over the derogatory term, Redskins, ballooned into a fight over freedom of speech last month when the American Civil Liberties Union (ACLU) filed an amicus siding with the Washington Redskins. The US Patent and Trademark Office (PTO) stripped the team of its trademark rights on June 18, 2014 on the grounds that the term “redskin” is disparaging to Native Americans and thus violates the 1946 Lanham Act, prohibiting trademark registration of any name that is “scandalous” or “disparaging.” In August, the Redskins retaliated, suing the five Native American leaders who originally brought them to court and claiming that the section of the Lanham Act that the court cited is unconstitutional and “effectively chills First Amendment free speech rights.” The Department of Justice intervened in this fiasco in January 2015, defending the PTO and upholding the Lanham Act’s constitutionality.
It was the Department of Justice’s intervention that prompted the ACLU to intervene on March 5. The government, the brief argued, was overstepping its boundaries in policing the Redskins’ language. In a blog post titled, “You’re Not Wrong, You’re Just an A**hole,” staff attorney Esha Bandhari wrote, “The Washington Redskins is a name that is offensive and perpetuates racism against Native Americans. Should it be changed? Yes. But should the government get to make that call? As we told a federal district court yesterday, the answer is no, because the First Amendment protects against government interference in private speech.” With this comment, the ACLU shed light on the Redskins’ trademark’s place in the debate over the sacredness of commercial speech and the government’s role as language police.
The PTO and the Department of Justice believe that the Redskins’ commercial speech, defined by the Wex legal dictionary as “speech where the speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential consumers, and where the content of the message is commercial in character,” should be subject to government scrutiny. Indeed, commercial speech is generally subject to less protection under the First Amendment than free speech in general.
This interpretation of the Lanham Act gives the government the power to officially condemn businesses that they deem “scandalous” or “immoral.” The government has used this power to protect some offended groups. Most recently, the PTO refused to register the trademark “Porno Jesus” for adult entertainment videos because it disparages Christian Americans. Further, the PTO cited the Lanham Act in refusing to register “Stop the Islamisation of America” as a trademark on the grounds that it would disparage Muslims and link Islam to offensive ideas, like terrorism. Stereotypes are dangerous, and in cases like this one, the Lanham Act helps to protect marginalized groups against undue hatred.
For Native Americans, the PTO’s leveraging of the Lanham Act marks a symbolic victory after years of disrespect. Baxter Holmes, a journalist for the Boston Globe who is Native American, traces the roots of the word “Redskin” to the bloodied scalps of Native Americans for which colonists would offer cash rewards. He wrote in an essay in Esquire, “Also, consider the history of Native Americans, a race all but annihilated because of genocidal policies … Our identity has been stripped away, lost to time, yet the most offensive word toward us still exists—where else?—but in this nation’s capital.” Native Americans have openly protested the name since 1971, when Kevin Gover, the director of the National Museum of the American Indian, wrote a letter to the team’s owner objecting to the racist name. The controversy has flared up at different moments during the last forty years, and in the last three years, groups of protestors as large as 5,000 have showed up at Redskins games. Meanwhile, the Redskins franchise has steadfastly denied the name’s offensiveness, calling it instead a marker of sports tradition. In 2013, the team’s owner famously said, “We’ll never change the name. It’s that simple. NEVER — you can use caps.” The PTO’s declaration that the name is offensive is one of the first major legal reprimands of the Redskins organization for their racist name.
The effect of the PTO ruling is mostly symbolic since the Redskins franchise will still be able to sell Redskins merchandise and bring other parties to court for copying them. But still, the ruling delivers a message to the Redskins and to businesses around the country that they have a responsibility to think about the groups that their actions hurt. Furthermore, it implies that no commodification of a group’s identity is excusable, no matter how well established the brand in question is.
As powerful as the PTO’s decision is, though, the ACLU brings up a compelling point. It argues that the government has no right to play “language police,” even against the Redskins’ offensive name, and that the PTO’s ruling is an infringement on First Amendment Rights. The Lanham Act is extraordinarily vague, so the government decides what is “immoral” or “disparaging.” The ACLU points out that “self-expression by women and sexual minorities is more likely to be deemed immoral or scandalous, and therefore more subject to government restriction under the present trademark law.” Even though the PTO cited the Lanham act to protect marginalized Native Americans, it seems that it has the potential to further marginalize other groups. For example, the PTO has decided that some groups disparage themselves with their names, misreading their attempts to reclaim derogatory words. For example, when an Asian-American band named itself “The Slants” as a jab at racist depictions of Asians-Americans, the PTO denied them trademark protection, calling “Slant” a slur. A lesbian band had to fight for the rights to its name, “Dykes on Bikes,” for the same reason, even though “dyke” is a term of pride for many lesbians. Meanwhile, a note in the Columbia Law Review argued that attorneys should not be allowed to condemn reappropriation of terms like these, because this reclamation is a way in which marginalized groups change the meanings of words and push social change. The PTO could easily strip the trademark rights of the new sitcom Fresh Off the Boat, which reclaims a derogatory phrase for recently arrived Asian-American immigrants, on the same grounds. If the government can decide what qualifies as “scandalous” it can potentially condemn groups that criticize the US government, introducing a scary and legal form of censorship.
This back-and-forth puts into question whether a business truly has the freedom to express itself in the marketplace. Native-American activist Simon Moya-Smith brings up an important point in a CNN opinion article, citing tribal rights attorney Tara Houska: “Freedom of speech is a fundamental right. In contrast, federal trademark protection is a privilege that one applies for at the U.S. Patent and Trademark Office.” Citizens lose no fundamental rights when the government polices commercial speech.
Perhaps a more specific Lanham Act is the answer. The Redskins franchise argued in their lawsuit, among other things, that the Act’s vagueness alone gave the government too much leeway in deciding what was “offensive” and thus made the Act unconstitutional. If the Act were revised to specifically delineate what is too offensive to become a trademarked brand, the government would be less able to abuse or misuse its powers as language police. But that path requires that we quantify the pain of racism, appropriation, or marginalization. Those groups must tread carefully then, because forcing a name change has the potential to weaken the pluralistic values it attempts to protect.