Fear not for the future of free speech after the Washington Redskins’ trademark fight. The legal dividend could be more free speech, not less.
A lot of my fellow First Amendment advocates sound nervous about cancellation of the Washington pro football team’s trademark by the U.S. Patent and Trademark Office last week.
Even among those who sharply disagree with team owner Dan Snyder, who irrationally insists that Native Americans somehow are honored by a word that major English dictionaries call “insulting” and “usually offensive,” there is widespread concern that the patent office is deciding what trademarks are “disparaging” to Native Americans or anyone else.
The decision can’t force the NFL team to change its name, but it could hit Snyder in his wallet.
If the ruling stands up in court, he could lose the right to block other companies from selling caps, cups, jerseys and other merchandise with the name and Indian head logo.
Critics see that potential penalty as an infringement on Snyder’s First Amendment rights.
Yet, viewed another way, the decision can be seen as an expansion of everyone else’s right to do what the government’s trademark allowed only Snyder to do.
Sometimes government not only is allowed but obligated to decide what is not only legal but also proper. The states, for example, routinely ban certain words, numbers or names from vanity license plates that they view as obscene or insulting.
A Santa Fe man, for example, unhappily lost his New Mexico vanity license plate in 2012 after state officials declared its message, “IB6UB9,” to be unacceptably naughty.
But we have courts to temper such judgments. The New Hampshire Supreme Court in May overruled state workers who rejected a request for “COPSLIE,” according to news reports. State regulations allowed for vanity plates to be denied if they were deemed “offensive to good taste.” (This particular request, I would add, also violates good sense.)
All states bar plates that are “obscene, lewd, lascivious, derogatory to a particular ethnic group, or patently offensive,” according to Stefan Lonce, author of “LCNS2ROM: Vanity License Plates and the GR8 Stories They Tell.”
Similarly, the federal patent office is allowed to reject applications for trademarks that are disparaging to particular racial, ethnic or religious groups.
That’s why a federal appellate court in May upheld the patent office’s refusal of a trademark to the website titled “Stop! Islamization of America.” Although the owners contend the website only opposed “political Islamization” and not the Islamic faith, the court ruled, “The (patent office) board disagreed, as do we.”
Yet it is hard to see where the group’s free speech rights have been infringed. Their website and Facebook pages remain online. So do Web pages by civil rights and anti-hate organizations that oppose the group’s positions.
Snyder similarly remains free to use his team’s name, if the revocation sticks, but so can anyone else. He only loses certain government protections, such as preventing other users of the team name from selling or exporting team souvenirs and presumably cutting into his profits.
Of course, the Redskins’ name has seniority, as its defenders point out. The team has been using it since the 1930s. But words do change in their meanings and implications over time.
I am reminded of how tea party protesters used to display tea bags on signs and used “tea bagging” to describe their anti-tax protests in early 2009, until liberal commentators made a mockery of the verb.
As a sign of respect for the right of people to be called what they want to be called, I stopped using the term to refer to the movement after an avalanche of emails expressed outrage over the “obscene slur.”
Yet, I have been dismayed to hear some – although certainly not all – of the same people who were angrily offended by that T-word unable to understand why Native Americans are similarly offended by the R-word.
That’s why I am not very upset that the patent office decided to cancel the Washington football team’s trademark. I am only disappointed that the government had to be asked.