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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