redskins

Editor’s note: Some of the registered trademarks cited in this story may offend some readers.

The U.S. government has determined that as a federally registered trademark, the Washington football team’s nickname “Redskins” is “government speech” rather than private speech and, therefore, can be censored.

So what, then, should Americans think about their government’s ongoing acceptance of registered names such as “Dangerous Negro,” “SlutsSeeker,” “Retardipedia,” “Ghetto Booty,” “Cracka Azz,” “Anal Fantasy Collection,” “WTF Work?” “Gringo BBQ,” “Boys are Stupid, Throw Rocks At Them” and “White Girl With a Booty”?

Those names also are deemed offensive by many people but are protected by the First Amendment, the NFL team argues in its appeal to the U.S. 4th Circuit Court of Appeals to reinstate its “Redskins” trademark after a federal judge canceled it nearly four months ago.

“The Death of Free Speech: How Our Broken National Dialogue Has Killed the Truth and Divided America” examines how the news media has created arbitrary, biased and illogical rules for determining what can and cannot be said in the public arena.

The government’s cancellation of the trademark doesn’t prohibit the team from using the nickname but releases it from protection under trademark law.

The government argued the trademark registration process is a government program, making all such names official government speech.

Rubbish, contended the team.

“Registering a trademark – like registering a copyright or issuing a video poker license or patent – is regulatory in nature and does not give rise to any proprietary government interest,” the team says in its brief.

“In exchange for meeting statutory criteria, the government confers ‘legal rights’ and ‘legal advantages’ to ‘protect’ marks against interference from other private parties. … Registration is ‘designed to facilitate private speech, not to promote a governmental message,'” the team argues.

“The [government’s] processing of registration applications no more transforms private speech into government speech than when the government issues permits for street parades; grants medical, hunting, fishing or drivers’ licenses; records property titles or birth certificates; or issues articles of incorporation.

“No one thinks about the government when buying Nike shoes, surfing Google, or watching National Football League games. Many marks, such as ACLU and National Rifle Association, represent organizations that regularly oppose government regulation.”

The team argued that of the more than 3 million trademarks registered since 1870, no registration “has ever been retroactively canceled for being disparaging.”

Until now.

“The name is over 80 years old, and the registrations nearly 50. The [government] registered the Redskins marks in 1967, and again in 1974, 1978, and 1990. Each time, no one objected. Each time, the [government] did not suggest that the marks disparaged anyone.”

But under the Obama administration in 2014, there was an “extraordinary about-face” on the issue.

This despite the team’s evidence that “many native Americans named their own sports teams the ‘Redskins,’ and no native American opposed registration in 1967 or sought cancellation for another 25 years.”

Registration does not make the name government speech subject to censorship, the team argues.

“The notion that all two million currently registered marks are government speech is astounding. It is equally disturbing. The [government] has registered hundreds if not thousands of marks that the team believes are racist, or misogynistic, vulgar or otherwise offensive. By way of example only, the following marks are registered today: Take Yo Panties Off clothing; Dangerous Negro shirts; SlutsSeeker dating services; Dago Swagg Clothing; Dumb Blonde beer; Twatty Girl cartoons; Baked By A Negro baked goods; Big Titty Blend coffee; Retardipedia website; Midget-Man condoms.

“None of this is government speech. Nor is the government subsidizing the marks. Registration of trademarks, like copyrights and patents, is not akin to a government loan, grant or other type of gift. Rather, the government, acting as regulators, finds that because trademarks meet statutory criteria (namely, being distinctive), they are entitled to legal protection against interference from other private parties.”

The Washington team argues that a ban on “disparaging” trademarks “unconstitutionally burdens speech based on content and viewpoint, just as would a ban on registering copyrights for ‘disparaging’ books.

“The government cannot turn the lights off at a Redskins night game because the government disfavors the name, and defend the action because the Redskins can still play in the dark,” the brief says.

The protest against the NFL team, valued at about $2.4 billion, was raised by several individuals recruited to file a complaint under the Lanham Act, which in 1946 set up a procedure to register names.

It also provides a procedure should someone claim to be injured by the name. In 1992, a couple of native Americans raised a challenge to the name but lost their case. The result this time was different, with the court ruling that trademarks are “government speech.”

That argument raises interesting prospects, the brief argues.

“Countless marks speak for themselves: Global Warming Sucks and I Hate My Teenage Daughter. But all marks are inherently expressive: Hershey’s and Mercedes-Benz signal a certain quality of chocolate or automobile. The New York Times and Fox News Channel signal a certain type of news. The Church of Jesus Christ of Latter-Day Saints, March of Dimes, National Rifle Association, and Republican National Committee communicate certain religious, charitable, or political missions. … And marks like The Redskins, New York City Ballet, The Beatles, and The Lion King signal the source and quality of entertainment services. … The government cannot, consistent with the First Amendment, deny marks those legal protections based on their content or viewpoint.”

The brief continues: “No one today thinks registration reflects government approval. But if this court holds that it does, how will the government explain registrations Like Marijuana For Sale, Capitalism Sucks Donkey Balls, Licensed Serial Killer, Yid Dish, Dirty Shooore Clothing Company and Murder 4 Hire?”

Taken to a “logical conclusion,” the brief said, the “decision below would permit the government to cancel the birth certificate or social security card of a man named Joe Redskins, for any reason or no reason.

“Does registration of The Church of Jesus Christ of Latter-Day Saints unconstitutionally endorse religion?”

The brief notes the decisions also are unconnected to any standard practice. For example, the government granted “Dyke Night” but refused “2 Dyke Minimum.” It granted “Dago Swagg” but refused “Dago Mary’s.” It granted “Wild Injun” but refused “Urban Injun.”

The decision by the U.S. Patent and Trademark Office has been affirmed by U.S. District Judge Gerald Bruce Lee.

Redskins president, Bruce Allen, has stated the team will not consider changing its name, even if it’s a political barrier to a new stadium. President Obama has expressed criticism of the team’s name.

And even the American Civil Liberties Union, well known for its far-left agenda, says while it doesn’t like the name, the First Amendment protects it.

“The question of whether certain speech is distasteful is entirely distinct from the question of whether the government can constitutionally disadvantage it for that reason,” the group has argued. “The Lanham Act regulates private speech that is protected by the First Amendment. Regardless of whether all proposed trademarks constitute expressive speech, many of them plainly communicate a particularized message entitled to First Amendment protection. And there is no question that proposed trademarks denied by the Patent and Trademark Office as scandalous, immoral, or disparaging … express a message.

“Indeed, Section 2(a) expressly conditions the provision of federal trademark registration on the government’s own recognition that a proposed mark is expressive and its own understanding of the viewpoint expressed in the proposed mark.

“It is axiomatic that the government may not regulate private expression based on its viewpoint; in mandating such viewpoint-based discrimination, Section 2(a) of the Lanham Act is an unconstitutional regulation of speech,” the brief states.

Meanwhile, the Federal Communications Commission said the name is not profane or obscene and can be used on the air.

“The Death of Free Speech: How Our Broken National Dialogue Has Killed the Truth and Divided America” examines how the news media has created arbitrary, biased and illogical rules for determining what can and cannot be said in the public arena.

 

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