Redskins Wrong, But Legal

An earlier blog on this site argued, rightly, that Dan Snyder, owner of a certain Washington football club, should voluntarily change the name of his team. He should. It's demeaning and wrong, full stop.

The ACLU, one of the oldest racial justice organizations in the country, has an institutional obligation to call this stuff out when we see it. To the extent we are just adding our views on racial prejudice to the marketplace of ideas, this is not a free speech issue, despite what some have said.

But there are a few proposals in Washington that would force Snyder to change the name, and they raise broader issues regarding the government's troubling ability to censor offensive speech. These proposals should be resisted as unwise for reasons that go beyond the immediate issue.

First, there's an ongoing battle at the U.S. Patent and Trademark Office (USPTO) to revoke the team name's registration as a trademark. Under the relevant section of the Lanham Act, the USPTO may not register vulgar (technically "scandalous" or "immoral") trademarks or those that "disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute."

The latter potentially includes the Washington NFL mark, but also and unfortunately something like this prominent lesbian motorcycle club, which proudly self-identifies using an epithet (and had to fight, in court, to maintain trademark protection).

The courts that have looked at the issue generally dismiss First Amendment arguments, finding that the only thing that's denied is formal registration, not the trademark itself, which attaches automatically as soon as you use a distinctive slogan, logo, etc., in commerce. In practice, however, denial of registration would make it much more difficult to punish someone who uses the logo without permission, which would likely force Snyder to change the name.

At first blush, it might seem obvious that the USPTO should have the ability to deny registration to racist or vulgar trademarks. But, as with all things free speech, who gets to decide what's racist or vulgar? That's right, the government, which is just ill-equipped to make these kinds of determinations. The motorcycle group above is a good example of the potential unintended consequences.

To its credit, the USPTO's Trademark Trial and Appeal Board (TTAB) engages in a very searching inquiry into whether a particular mark is offensive and considers extensive testimony and evidence by social scientists, advocacy groups, linguists, lexicographers, and others.

At the end of the day, however, the ultimate determination is inherently subjective and the TTAB and reviewing courts have a significant amount of discretion in deciding what's disparaging and what's not. It's not unlike "I know it when I see it" in obscenity law, and it raises similar problems.

For an entertaining, and potentially not safe for work, example of the kind of odd line-drawing that the statute requires, this time in the context of vulgar marks, see this case involving "entertainment in the nature of adult-oriented conversations by telephone." One proposed mark was denied as vulgar but another mark using the same offensive term was okay because it "relate[d] at least in part to the nursery rhyme involving Jack and Jill, and therefore create[d] a double entendre that [was] not present in" the applicant's mark.

Much worse than the trademark issue, however, is a push by three former commissioners at the Federal Communications Commission to not just leverage but significantly expand broadcast indecency laws beyond sexual and excretory content to cover racial and ethnic slurs.

The ACLU has long been on record as totally opposed to indecency regulation, period, which invariably chills highly valuable speech while letting a lot of arguably indecent content go. As we explained in recent comments to the FCC, not only has the historical justification for indecency regulation gone the way of the dodo, enforcement has resulted in absurdly inconsistent results. For instance, the FCC refused to enforce the law against swearfest "Saving Private Ryan" while dropping the hammer on PBS's "The Blues," because omitting swear words in the former would somehow "alter the nature of the artistic work."

To extend it to racial, ethnic, and presumably other disparagement would create a morass of uncertainty. Just consider how many individual violations there could be in one great episode of "Family Guy." "All in the Family" would have put CBS out of business. Risk-averse television execs are going to stay far, far away from anything approaching the line.

In any event, it's a wrong thing to refer to an entire people based on a perceived racial characteristic. The term "Redskins" absolutely shouldn't front the jersey of an American sports franchise. Government coercion, however, isn't the way to make it right.

Public pressure? Now we're with you on that.

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Have you asked a native American if they think the name Redskins is offense? Or are you simply offended?


Go Skins


Are you offended by the word Oklahoma? The state's name is derived from the Choctaw words okla and humma, meaning "red people". I don't see any push to get that removed.


This organization is slowly destroying the United States of America and most of the principles it was founded on, Christianity. You want the name GOD removed, you want prayer removed from the schools. You'll have to stand before GOD and face what you have done and continue to do, which is destroy Christianity in this country, not going to happen.


there is nothing demeaning about their name... it's a brand. get over it


I don't agree with this "Non" issue.
It's like saying black skin or white skin or yellow skin???
What is the problem with that distinction?
Those questions are even asked when you join the military or some governmental job and in some of the private business sectors.
You also have team names like "The Cleveland Browns" or the Boston Red Socks" the "Cincinnati Reds" or Hockey's, Chiefs"??? How about the New York Yankees?
All of these team names could also be criticized in some belittling way, if you try real hard, I mean you have to loose sleep over it or until you can come up with some mediocre reason.
You might as well start at the beginning with the "Minute Men" or "Patriots" or rebels because they too have had these labels placed on them by those who wanted them dead and gone because they were causing our country to become one instead of one that was controlled by another country that didn't like their names or thought they were not in good taste.
This is a "Bad" example and a little stupid of an undertaking for the ACLU and Anthony really needs to monitor who did this and why but especially, let this person go.
If you are referring to the "Color" of "Red", then I can see a point, a small one, but never the less, a minor issue because if that were the case then "Anyone" who gets burned by the sun while at the beach could file a grievance and collect money for being,,, "Stupid". By the way I too have Indian blood so if it doesn't bother me then you have my permission to,, "Butt out" and go after our elected morons who are far worse that any insignificant team name can ever hope to be.
White-skin, Redskin, Spanish, Italian etc, and if I'm not mistaken(without a DNA test) you might include black-skin. Stop wasting our time with this frivolous non issue and go after our Governemnt where the big boys are.

Mick DeLeon

You know, it wouldn't kill them to go with Washington Warriors, still keeping their Native American-oriented motif/logo....


Perhaps the name refers to redskin potatoes?
I am quite weary of these hyper reactions to perceived 'offense', and political correctness trumping common sense.
I was apparently under the false impression that the purpose of trademark registration was to protect *me* the consumer from shoddy knock-off copies of products properly representing their sponsor. Imagine going to a game to find that your 'redskin' team program purchased near the gate actually contains the roster of a local soccer team.
We need to have organizations remember what their original purpose in creation is and stick to that mission and that mission alone. The ACLU itself does this well, but this mission drift is particularly odious when it happens in Government entities.


In your article, you claim that this is not a free speech issue. Technically, you are correct. The US gov't has not yet attempted to ban the word "Redskin". However, the substance of your contention is wrong. This actually is a free speech issue.

Sadly, it has become fashionable for some to hide behind the 1st amendment to proclaim their support of free speech, while finding it perfectly acceptable to use all other means at their disposal to achieve the same ends the 1st amendment was put in place to proscribe.

To do this does not make one a supporter of free speech. It makes one a liar and a hypocrite. Moreover, the irony is that these ersatz "free speech supporters" are exactly the reason we need a 1st amendment at all, for who could possibly doubt that if they could use the government to achieve their ends that they would hesitate for a single second to do so.

The truth is that the only real guarantee of liberty we have is our willingness to defend the liberty of our countrymen, regardless of whether or not we like or approve of how they exercise it, provided that their exercise of liberty does not violate the rights of others. We do this because as Americans we know that in defending the liberties of our fellows, we are defending our own.

If we as a people choose to break this compact, then it won't matter what the Constitution says or what the government does, the freedoms we hold dear will be gone and we alone will be responsible for their destruction.

Either we are who we say we are or we are not. Either we believe in what we say we believe in or we don't. And if we don't, we should stop calling ourselves Americans, for then we do not deserve to number ourselves among those who came before us and sacrificed so much to protect those principles which we seem to be so willing to casually disregard in the service of what some of us arrogantly presume to be "right" at this particular point in time.

This particular issue is nothing more than another excuse for some us of to pretend that it's OK to welch on our end of the aforementioned American compact. Well, it's not OK. It never has been. There is no legitimate excuse for it because the use of offensive words doesn't violate anyone's rights, for there is no right never to be offended.


The vast majority of American Indians regard it as a compliment, not a vulgar insult.


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