1st Amendment and Other Concerns On Appeal of Redskins Decision

JusticePicThere has been a lot of commotion over Wednesday’s decision by the US Trademark Trial and Appeal Board to cancel several trademark registrations of the Washington Redskins originally recognized back in the 1960’s by the United States Patent and Trademark Office (PTO). The full decision is here. It is quite long, detailed, and, at least facially, pretty compelling in its finding that the trademarks are “disparaging to Native Americans”.

Before I go further, let me say that I agree with those who think Daniel Snyder and the Washington Professional Football Franchise should change their name. It may not be the most pressing issue in our society, but it is something for which the time has come. Josh Marshall posted his thoughts on this subject at Talking Points Memo, and I think he put it all in excellent perspective and I agree with his conclusions.

The simple fact is we shouldn’t be using whole peoples as mascots for sports teams. Whether or not Indians in America today find it offensive is almost beside the point. The fact that most do is just an extra reason to do away with the practice.

With all I’ve said, there’s a part of me who feels like, ‘We really can’t have the Cleveland Indians anymore?’ It feels like a loss – part of the landscape of American sports I’m attached to. But it’s time.

Well said and, again, I agree. Josh’s entire piece is not long and is worth a read.

That said, and as much as I would like to see the name changed, I have trepidation about the government forcing the issue through agency decisions on what is proper speech, and what is not.

Tradenames and trademarks are, by their nature, really public speech and, thus, at least where they interact with the government, should be entitled to First Amendment protection. Now First Amendment protection is never absolute, but it is presumptively extremely broad. Likewise, First Amendment protections are against governmental action restricting free speech, not necessarily against private persons or entities. If I refuse to listen to you or to print what you have to say, that would be censorship, but it is not First Amendment action. If I am the government and censor you, then that is a different matter and there is a First Amendment issue.

So, here, the TTAB has taken it upon itself to restrict, at least in some regards, the free expression of the Redskins, via refusal to extend the same protection offered other “acceptable” speech and they do so by obvious decree of a governmental entity. Now the TTAB decision made out a VERY thorough and facially compelling case for

“disparagement”. But should the PTO, and likewise TTAB, be in the business of deciding what is and what is not acceptable speech? While I sympathize personally with the effort to get Snyder to change the name, I do have issue with the government being in the speech propriety business. I am not sure courts will agree with that position or not, but I think it is a quite arguable point.

I am not the only one with this view. One of the greatest Constitutional voices of our time, and an unabashed liberal mind, Professor Erwin Chemerinsky. Here Erwin is quoted by Tony Mauro at the National Law Journal:

“The difficult underlying question is the extent to which the First Amend­ment limits decisions of the U.S. Patent and Trademark Office,” said Chem­erin­sky, dean of University of California, Irvine School of Law. “All grants of intellectual property, such as copyrights and trademarks, limit speech. But the court has been unwilling to use the First Amendment as a limit in this area.”
Nonetheless, Chemerinsky said, “This is different. This is the government making a decision on conferring a benefit based on the content of the speech. I think this raises a real basis for a First Amendment challenge.”

Here is Professor Jonathan Turley in the Washington Post:

When agencies engage in content-based speech regulation, it’s more than the usual issue of “mission creep.” As I’ve written before in these pages, agencies now represent something like a fourth branch in our government — an array of departments and offices that exercise responsibilities once dedicated exclusively to the judicial and legislative branches. Insulated from participatory politics and accountability, these agencies can shape political and social decision-making. To paraphrase Clausewitz, water, taxes and even trademarks appear to have become the continuation of politics by other means.

What is needed is a new law returning these agencies to their core regulatory responsibilities and requiring speech neutrality in enforcement. We do not need faceless federal officials to become arbiters of our social controversies. There are valid objections to the Redskins name, but it is a public controversy that demands a public resolution, not a bureaucratic one.

Turley has quite a few tangents on which he attacks the TTAB decision, and his piece is worth the read for them.

And, batting cleanup Professor Eugene Volokh:

My tentative view is that the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional. Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination.

This is what I believe, and have been saying on Twitter since the decision was made public last Wednesday. This is also why I think there is a reasonable chance the decision is ultimately reversed on appeal. What the accurate odds are, I have no idea, but there is a very cognizable argument here.

There are two ways this will be viewed on appeal, the way the factual finding of “disparagement” is reviewed, and the way the ultimate conclusion of law as to “registrability” is viewed, and there are different standards of review for the two. The fairly recent, May 2014, case of In Re: Pamela Gellar and Robert Spencer provides the standard:

The Board’s factual findings are reviewed for substantial evidence, “while its ultimate conclusion as to registrability is reviewed de novo.” In re Fox, 702 F.3d 633, 637 (Fed. Cir. 2012).

At first blush, you would think Geller is strong indication that the TTAB decision on Redskins will stand up on appeal, and strictly on the issue of “disparagement, it would be. But Geller does not touch the First Amendment argument.

The Federal Circuit, in complete dicta, discussed the First Amendment argument in the 1999 case of Ritchie v. OJ Simpson, and seemed to lean against recognizing it as controlling, but did not reach the merits in the least. And the Federal Circuit is a far different animal now than it was in 1999, not to mention the SCOTUS view on free speech, especially corporate, vastly different.

For this reason, I caution the real test on this lies not at the District or Federal Circuit Court of Appeals stage, but ultimately at the Supreme Court. And the Roberts Court has been dogged in protecting corporate free speech. Also keep in mind that the conservative majority on the Roberts Court, save for Clarence Thomas (who might as well be from his record) are all white ass honky men who are all long time residents of the Washington area and, undoubtedly, Redskins fans. I am sure you catch my drift here. Suffice it to say, it is effectively a new question, they are the ultimate law, and their view may not be yours.

Again, I have no idea how this goes, but I think it is a real and very substantive issue once this matter gets to federal court, and the TTAB did not particularly have the jurisdiction to even consider this, so this will be a new argument in federal court and not subject to any presumption against it because of the previous decision at the TTAB. This is what I was talking about on Twitter when I kept pestering people about “hey, what is the burden/standard of review on appeal”. The answer was, and no one got this, a lot of the case will be considered de novo, which means the prior decision may mean little and end up of little to no moment.

That is obvious for issues and arguments that were not considered below by the PTO and TTAB, but also some that were. In fact, the way it will play out on the matters within yesterday’s TTAB decision is that the factual findings below are reviewed for substantial evidence, and if found they will be upheld, but the ultimate conclusion as to registrability is reviewed de novo. And, keep in mind, “registrability” is the ultimate issue as to whether the “disparagement” finding precludes it. This is exactly where, and why, the First Amendment issue is going to be so critical.

It is a worthy issue for discussion, and resolution by the federal appellate courts. Remember, we don’t have to approve of speech to protect it, indeed, the Constitution is about protecting that which the majority may, from time to time, not approve of or desire.

55 replies
  1. Brindle says:

    I pretty much agree with your take on this.
    Public pressure on the NFL team via boycott of sponsors, companies and their products that advertise during games is a more straight forward method of getting the name change.

  2. Peterr says:

    Bmaz, given your interest in cars, I’m curious about the parallels (legal and otherwise) between the ruling here and the longstanding practice of states regulating which messages are and are not allowed on “vanity” license plates. Here in Missouri, the relevant language from the MO Dept of Revenue (the folks that manage the vehicle license program) is this:

    No personalized license plates shall be issued containing any letters, numbers, or combination of letters and numbers which are obscene, profane, patently offensive or contemptuous of a racial or ethnic group, offensive to good taste or decency, or would present an unreasonable danger to the health or safety of the applicant, or other users of streets and highways, or of the public in any location where the vehicle with such a license plate may be found. Any license plates that are inadvertently issued may be recalled.

    Every so often, there’s a news story about someone appealing a denial by the DOR, but I can’t think of a case that went to court on First Amendment grounds. Given that this language is up on the mo.gov website right now, I trust that if there *have* been any legal challenges, they have not been successful. How is this kind of government-based regulation of offensive public speech different from what the TTAB has done in this case?

  3. seedeevee says:

    “. . . this sort of mascotization comes out of a history of domination, dehumanization, and romanticization . . . If we were in a graduate seminar we’d say the dominant culture pulled off a massive act of appropriation. The simple fact is we shouldn’t be using whole peoples as mascots for sports teams. . . . ”

    “I agree with his conclusions”

    I just have to say that Josh Marshall should not be on the list of people anyone takes advice from. He is no better than a slightly-left-of-David-Brooks parrot and the other “deciders” who profess to know what is “acceptable” for us peons to consume.

    It was sad to see you support such a cheap thought police move.

    • bmaz1 says:

      Listen, I do not always agree with Josh, but this is fairly straight forward here. You either agree with him about the nature of the Redskins, or you do not. Throwing mud and avoiding that is silly.

      • seedeevee says:

        I thought mud throwing was what goes on here quite often.

        Anyways, the “dominant culture pulled off a massive act of appropriation” line of thought is farcical and should be laughed at, not celebrated as some kind of legitimate academic theory. “massive act of appropriation”? C’mon.

        Josh Marshall is an avowed racist and his explanations on “race” should be seen through the eyes of his cognitive dissonance. I don’t know you well enough to understand your reasoning.

        The line of thought that “no one can use these things because someone bad will use them” is what gives us some of our most bullshitty laws and customs.

        • bmaz1 says:

          My cite was to his analysis of why it is time for it to go, and his statement that it should. I agree completely with that. If you don’t, that’s fine, but don’t include me in on any specious allegations of racism.

  4. Ben Franklin says:

    This is nonsensical. I’m not into ‘mansplanations’ wrt to the exposed nerves of feminism because the push-back is to further alienate untoward (from certain perspectives) rationale (anything that detours from the accepted trope). But the oversoul of hyper-sensitivity can never be satisfied because of historic wrongs in both racial and gender issues. There is no amount of recompense which will satisfy and this is absurd on it’s face. I have two great grand parents who were full-blooded NA’s (Blackfoot and Cherokee) and I can tell you this does nothing except create a further atmosphere of reverse-dominance by fiat. I am not offended by Red Man chew or the Redskins logo. BTW; I am also Irish and am not offended by products names for Irish whiskey either.

  5. masaccio says:

    On the legal issues, I wonder what the limits are to the arguments bmaz lays out here. I can think of a number of people and groups who would cheerfully register trademarks that slur large groups of us, and I can easily imagine ways to do it that would throw up a veneer of reasonableness sufficient to get past the Creepy 5 “justices”.

  6. P J Evans says:

    I don’t have a problem with the Cleveland Indians (it’s very general and, AFAIK, they came by it legitimately), but the Redskins and the Braves are, for me, on the wrong side of the line. Tradition is fine, but we’ve changed enough as a country to see how those are wrong.

    • Bay State Librul says:

      Whatabout Chief Wahoo?

      Chief Wahoo, the smiling symbol of the Cleveland Indians since the 1940s who is beloved by many but deemed to be racist by others, is being replaced as a primary logo, uniform expert Paul Lukas reported Wednesday. Instead, the team will emphasize a block letter “C” they introduced in recent seasons. The Indians aren’t eliminating the Chief — the home uniform will continue to feature him on caps and jersey sleeves — but fans will see less of him overall.

      The Indians aren’t the only team making a logo change for 2014. The Pittsburgh Pirates are “ditching” their eyepatch-wearing Jolly Roger in favor of a gold “P.” Yeeeargh — say it ain’t so, mateys! Regardless, don’t expect Bucs fans to stop raising the Jolly Roger flag at PNC Park after a victory.

      As with any other Major League Baseball teams, the Indians and Pirates are trying to maximize the dollars they can make marketing their product while hurting as few feelings as possible.

      While the Indians never come out and say they’re marginalizing the Chief, they seem to be continuing a trend of de-emphasizing him. They’ve reduced his visibility at spring training in Arizona, where more Native Americans live. They don’t use him at every opportunity to publicize team events or programs anymore. They’ve also surveyed their fans asking their feelings on the Chief, as if to gain “permission” to make a change.

      While it would seem that most of their hardcore supporters also support the Chief — or at least are neutral about him — other factions consider Wahoo to be an overtly racist caricature that demeans Native Americans. By moving to marginalize the Chief, the Indians can have it every possible way: Fans can buy more stuff with the hyped-up block “C” if they like. Fans still will be able to buy Chief Wahoo stuff in case they’re afraid it’s going out of style or will be taken away. It can even be used as clothing of defiance!

      Simultaneously, the Indians can appear to be subtly appeasing those against use of the Chief while also being sensitive to Chief loyalists by keeping items with his kisser stocked in their stores.

      It’s a sound strategy, even if it’s just a stopgap and they have to make a more permanent decision on the Chief someday. Cleveland’s situation is probably different from that which faces the NFL’s Washington Redskins. At some point in the future, it’s going to become too socially unacceptable for the Redskins to keep their nickname. They’ll be forced to change. The Indians have more wriggle room because the Chief is just a logo. He can hide.
      — David Brown

      • TarheelDem says:

        Wahoo is repulsive in the same way that Atlanta’s Knockahoma and the tomahawk chop were. Of the same character as depictions of African-Americans and Asians in 1920s and 1930s cartoons. Or the 1940s depictions of Japanese in cartoons (which later were aired on TV cartoon shows in the 1950s.

        • P J Evans says:

          It may help to understand that at one time, before the Chief was introduced in Cleveland, they had a player, Louis Sockalexis, who was from a tribe in the northeast. That’s where they supposedly got the name, although Wiki says it’s actually the result of a newspaper contest at about the same time. At any rate, the name goes back to about 1919.

  7. orionATL says:

    every now and again an issue masquerading as a fairness, kindness, racial issue comes along to make good-hearted people temporarily insane. the washington redskins issue is just such a issue – mindless, pointless, feel-good sensitivity/liberalism at its worse.

    there is no long tradition of vicious mistreatment directly associated with “redskin” as there is with “nigger”.
    the american indians were indeed mistreated by white europeans in much the same way the european jews have mistreated the palestinians and african dutch mistreated their black countrymen. american indians had their lands stolen, were uprooted and moved, were forced into government-delineated reservations, and have continued to experience social dissolution and family stress like no other segmemt of society. most tragicly, a north and south american indigenous population was reduced from tens of millions to two or three million in a span of 200 years – by european induced smallpox.

    oh, and speaking of american “indians”, shall we ban that use also? and the term “whites”,short for “white man”.

    i don’t know what particular motive lead the northeastern indian leader to choose this trivial issue to get exercised over. a cynical view would favor the explanation that achieving and maintaining power are greatly helped with a little bit of notoriety. a wee bit of extortion would not be beyond the behavior of us humans in this situation.

    so the american indian part of our society (and the rest of us because we are one society) have excessive unemployment rates among reservation inhabitants, severe problems with divorce and abuse of women, high infant mortality,reduced child education. but amidst this social dissolution, the intense focus in indian affairs is on the use of a term, “redskin”, rarely used as a derogative of any kind.

    what’s next in eastern, feel- good liberalism – the term “indians”? wow, i can see american indians and india indians already thinking of the possibilities for power grabs and shake downs.

    as for heeding the advice of the slow-witted josh marshall, if he’s for it – run away. this is the same josh marshall that barack obama was the answer to america’s leadership problems and has licked prez’s patent leather shoes since spring, ’08. i wonder if some of the “redskin” indian leaders have promised him a ticket as a member of the longhouse reporting staff.

    the world is not going to end either way this inane attack on a sports team’s name ends. but when we see media figures falling all over themselves to comment and support ending this heinous “discrimination”, we know the morally indifferent in our society see a slow-pitch coming right over the plate.

    the aff care act and the deliberate effort to deny medical care to millions – “care to comment, sir”; “uh, uh, it’s a complicated issue”.

    the republican, evangelical, catholic effort to deny contraception as well as abortion to the adult female population of this country – “care to comment, ma’am”; “uh,uh, it’s a complicated issue”.

    and our government spying on us? “it’s a very complicated issue”

    and the american football team having a name like “redskins”, a reference to the indiginous indian population of the americans? discriminatory! insensensitive! thoughtless! psychologically damaging! racist! imperialistic! capitalistic!

    see how easy moral decision making among our media leaders can be if we just get ahold of the right issue.

    reminds me of the susan koman pink tights nights in the good ol’ nfl – careful rodger. keep looking over your shoulder.

  8. TarheelDem says:

    While First Amendment rights to protest and assembly for the redress of grievances are eroding and First Amendment separations of church and state are eroding, we are going to uphold First Amendment rights to institutionalize racial slurs and expansive Second Amendment rights to carry firearms everywhere for intimidation except in legislatures and courts. When this gets overturned, some billionair bigoted owner is likely to rename some team, say a New York team, as the New York Niggers. Understand that that is the level of disparagement that we are talking about in this issue.

    Watch what happens when Native Americans and African-Americans begin to open carry in “open carry” states. How secure are those rights going to be?

    The Constitutional professors seem to strain at gnats and miss big huge camels.

    And there is a growing question as to whether the Constitution as an operative working governmental document limiting real government excess has existed in the 21st century.

    • Ben Franklin says:

      Then there is the Boston Celtics whose logo is a leprechaun. Th Irish were verklempt interlopers escaping the Potato Famine and were appropriately regarded as illegitimate participants in society. Pittsburgh is only populated with steel workers?

      All this window-dressing does little to change attitudes, beliefs and opinions. But it does increase animosity toward minorities, in toto.

      • TarheelDem says:

        But they are the Boston Celtics, not the Boston Micks. Not sure what the status of Boston Irish community was in 1946, but I think is was a major market segment that Edward Brown wanted to attract. And Pittsburgh does not have a team called the Pittsburgh Polacks.

        And the Green Bay Packers are named for the meatpacking occupation that still exists there, along with toilet papermaking and manufacture of diapers (unless offshoring has hit there as well). There was a great deal of labor pride when the Steelers and Packers were named.

        As far as I know there were no Patawomecks or Piscataways who were early NFL players for Washington. The team orginated in Boston, where they were first called the non-offensive Boston Braves. The name was later changed to Boston Redskins to mimic the Boston Red Sox because they both played at Fenway. You can hear the ad guy thinking “Fenway Park, the home of the Boston Red Sox and Redskins”. And for that trivial change from an innocent age that tolerated massive racist slurs we have the current controversy. How was some ad hack in Boston to know that actual Indians resented the term “redskin” because of the way that it was used in their presence more than some other terms? And how was he (it likely was a he) to know that eighty years later there would be a public consensus that ethnic groups are not mascots against their wishes?

        Snyder is just being a willful billionaire bigot.

        In my mind the TTAB action raises the question of what the value of patent, trademark, and copyright laws are anymore. They certainly do not promote the expansion of knowledge and invention or eliminate confusion among business offerings anymore. They have become the sinecures of “intellectual property” to be traded for cash and never used.

        • Ben Franklin says:

          Yet many African-Americans do not object to the term ‘black’ and the hero of Irish independence (Michael Collins) did not object to being called “Mick”. I think the semantics of identity ethnicity should rise above the tender mercies displayed by other ethnicities, who although well-intentioned, should bugger off.

          • dakine01 says:

            “Mick” is an accepted nickname/abbreviation for Michael which is different from calling someone “a mick”

            As well, Michael Collins is from the 1920s, i.e., the same time frame (a bit earlier in fact) that said calling a sports team the “Redskins” was acceptable

  9. Solbus says:


    Isn’t this trademark ruling part of the Agency’s requirement to be in compliance with Title Vii of the Civil Rights act and the 14th amendment?

  10. Solbus says:

    It’s also interesting how “we”– even here– seems to automatically exclude american indians. Often, even when one claims NA ancestry, it seems to be a measure of how deeply assimilated one is, how much identity has been lost.

    • Ben Franklin says:

      Heh. I take great comfort in NA’s getting the last word via the system. Each Indian Bingo casino that opens is revenge on that.

  11. orionATL says:

    not that information or historical scholarship should reduce one’s enjoyment of a nice, warm, cleansing bath in bubbles of fairiness and self-righteousness, but

    “..Cultural and Historical Factors The spurious occurrence of redskin with a date of 1699 has masked the true history of the adoption of this word into English, which has been further obscured by the omission from the standard dictionaries of citations from James Fenimore Cooper, the most important agent of its diffusion. The word redskinreflects a genuine Native American idiom that was used in several languages, where it grew out of an earlier established and more widespread use of “red” and “white” as racial labels. This terminology was developed by Native Americans to label categories of the new ethnic and political reality they confronted with the coming of the Europeans. The sudden emergence of the English word redskinin print during the treaty negotiations of 1815 can plausibly be seen as directly stimulated by the circumstance of those events. The treaties were greatly empowering for the Indians, who ceded nothing and were loaded with gifts in exchange for accepting a mutual peace. The huge intertribal gathering at Portage des Sioux encouraged a sense of supratribal Indian identity in dealing with the fledgling U.S. Government, continuing 65The OED quotes this use of “Redskins” citing Dixon (1872) but gives it under the 1851 date of Dixon’s earlier book. the similar effect of the political alliance and religious movement promoted by the Shawnee chief Tecumseh and his brother Tenskwatawa, the Shawnee Prophet, which had reached the eastern parts of the Illinois Country. The travel to Washington of multitribal delegations to be a part of the formation of national policy towards Indians also helped forge a pan-tribal self-image and identity among the leaders of different Indian peoples. When Black Thunder wanted to refer inclusively to all the assembled tribes and to both the Americans and the French, he said “red skins and white skins.” When Big Elk told Clark how impressed he had been by the obsequies for Black Buffalo, at which, surely for the first time, an Omaha principal chief had given a funeral oration for his Teton counterpart, he availed himself of the inclusive term “red skin” as an expression of solidarity. At the same time, the views of the officials and the local whites towards Indians were forced to evolve. The oratorical powers and political skills of the leading chiefs demanded and received respect. Local newspapers that as recently as the month before were denouncing scalpings now were publishing the texts of Indian speeches both as significant news events and as admirable intellectual achievements. In these changed circumstances the interpreters began to use the literal translation redskinsfor Native American expressions they might earlier have rendered Indiansor red men, and the newspapers fixed in print speeches that displayed the new usage in a confident and appealing voice. The local French equivalent, Peau-Rouge, played a role in this, though the earliest uses of the English word differ from the contemporaneous uses of the French word in being strictly an Indian expression, used only by or in speaking to Indians. Cooper’s use of redskinas a Native American in-group term was entirely authentic, reflecting both the accurate perception of the Indian self-image and the evolving respect among whites for the Indians’ distinct cultural perspective, whatever its prospects. The descent of this word into obloquy is a phenomenon of more recent times…”

    Ives Goddard – smithsonian

    [PDF] “I AM A RED-SKIN”: The Adoption of a Native American …
    The word redskin reflects a genuine Native American idiom that was used in several languages, where it grew out of an earlier established and more widespread use of “red” and “white …
    Search domain http://www.anthropology.si.eduanthropology.si.edu

  12. scribe says:

    Something that’s being overlooked here is the effect of the Board’s decision on the Franchise. The long and the short of it is this: the Franchise still owns the trademark and it is still enforceable, protectable intellectual property. The Board’s decision merely removes some presumptions and statutorily-granted advantages, contained in the Lanham Act, that make the Franchise’s enforcement of trademark protection easier.
    To reiterate.
    The Franchise still owns the trademark.
    The trademark is still valid.
    The trademark can still be enforced to protect it against interlopers.
    Enforcement now can go forward but only without some presumptions and advantages that accrue to the mark-holder under the Lanham Act. (Things like being able to have Customs seize infringing goods in a quick and easy manner, as opposed to a longer and convoluted manner.) So, it’s a bit harder to enforce.

    Too often, judges think denial (or revocation) of a mark means there is NO protection and nothing is enforceable. This is false. There is an extensive common law of trademarks and their protection/enforcement which exists independent of registration.

    There was an extended article explaining this over at one of the other sites the other day – either Volokh, ScotusBlog, or through How Appealing. I forget which and it’s been a long day, too long for me to be digging around to find it.

    But, in reality, this is just the onset of what newspeople called The Silly Season, in which we’re being all riled up over something with minimal importance beyond symbolism. The Thought Police are out in force and everyone’s excited.

    Frankly, I don’t care what Snyder calls his team, as they’re going to suck regardless so long as he’s in charge.

  13. orionATL says:

    i would love to know this:

    – is there a public relations firm (or a lawyering/pr firm) supporting the efforts of the anti-redskin group?

    – where is the money coming from to support the p.r.ing and the legal challenges?

    – what is the hidden agenda behind this activity? who will benefit financially from a change of redskins name?

  14. orionATL says:

    there is a speech right to be abusive, crude, insulting, unkind, racist, wrong, rude … is there not?

    most of us are not saints in our angry personal or public speech.

    a few of us who are public figures deliberately and not necessarily angrily use very rude, unkind language as part of our political speech appealing to supporters or criticising opponents.

    is angry, contemptuous, rude, racist/ethnicist/religiousist/sexist not also protected speech?

    more to the point, is not such speech – angry comment and angry retort – not part of being human?

    next time you see an angry striker or a person who has been demonstrating angry at a cop, remember the essential humaness ( primateness :)) ) of that speech.

  15. Solbus says:



    @Benjamin Franklin, OrionATL

    Anthropological research isn’t the last word, it has always demeaned oral histories by indigenous peoples and their experience, both because of constraints of culture, POV, and language. An anthropologist’s narrative is nearly always contaminated by the researcher’s reliance on phenomenological translations of experience into foreignist meanings of the Other. As with most labels, there’s many levels of meaning. That a corporate body denies some stratas of meaning, does not negate the Other’s deeper interpretation. It’s a good ruling that acknowledges exactly that. (Opinion)

    • orionATL says:

      “…, [anthropological resesrch] has always demeaned oral histories by indigenous peoples and their experience, both because of constraints of culture, POV, and language…”

      this is a flat-out inaccurate statement; it does, however, provide us with the rational you use to ignore information that contradicts your beliefs.

      there are no peoples or individuals or their cultural artifacts that are so different from all the rest of us that scientific study, including anthropology, just can’t capture the reality of their physical selves or culture.

      mystical reverence for some past may make you feel good, but it is not going to get you closer to any reality but the one you’ve constructed inside your head.

  16. Bitter Angry Drunk says:

    Hard to believe that here, of all places, I’m finding such lame defenses of the Redskins’ name. I have no idea if the PTO overstepped its bounds or didn’t follow protocol, but changing the name in general seems like a pretty damn simple moral argument to make. The genocide happened. The U.S. government declared war on the native peoples, took their land and tried to wipe them out with alcohol and smallpox blankets. I believe that the history demands that this situation be treated with more seriousness than Josh Marshall’s faux enlightenment about any groups of people being represented as mascots.

    Speaking of history, there are plenty of, I’ll just call them “accepted” depictions of native Americans: the Indian head penny, the buffalo nickel, the Chicago Blackhawks. I’m not aware of any significant, organized movements against those. And personally, I don’t have an issue with the Redskins’ Indian head logo or the Cleveland Indians’ name. But the Indians’ horrible cartoon logo and the ‘Skins’ dreadful, racist name have GOT to go. Good lord, in 2014, how can people still not see that?

  17. lefty665 says:

    What a trivial issue for the Feds to be using to make encroachments on the 1st amendment. Sorta scary. Maybe the Teabaggers are onto something after all. But wait aren’t they named after a protest by a bunch of guys who dressed up as “redskins”? Should they have to change their name? Or maybe it’s just a sex act, but would that make it ok? Goodness gracious, this is all so confusing.
    As a D.C. area “native” I’ve been rooting for the Redskins since they were in black and white on tv, and before there were any black redskins. In my experience, in all that time, the term has been one of honor for the fierceness, bravery, pride and prowess of native American warriors. There was always the forlorn hope that some of that might rub off on the bums on the field (except Sonny of course, he was great from the get go).
    Since gayness has officially arrived in the NFL, maybe the name could change to the “Hogettes” to honor the fans who show up in pig noses and drag. It would be so avant-garde.
    But I digress. Sports teams pick trademarks to inspire not denigrate, and that is illustrated by the local exceptions. The old Washington “Senators” got sold and shipped to Minneapolis. Perhaps if we did the same for the real Senate the country would be better off. I worry for the current ball team, the gNats. Who would name a team after a pesky, but tiny, bug? Not very inspiring. Richmond’s current AA ball club is the “Flying Squirrels”. What must Rocky and Bullwinkle think?
    Really people, don’t we have enough profound, existential even, concerns? Why is anyone wasting breath and energy on this?

  18. Solbus says:


    I don’t believe you know anything about it, as you didn’t speak to any of the points I made. And your projected view of the pure-as-snow innocence of cultural anthropology in the name of science! is simply not very developed. See:
    The point I was so poorly making was that all things considered, it’s the perceptions of the targeted ethnicity that are most relevant, not the misperceptions rooted in the advantage of superior privilege, socially deluded Randists, in particular. That’s part of the bedrock originalist meaning of the Constitution. And that’s not even going into the implications of mass surveillance as a kind of cultural anthropology experiment as far as panopticony serves.

    • orionATL says:

      “i don’t think you know anything about it as you didn’t speak to the points i made.”

      what tedious drival. my calling one of your statements “flat- out nonesense” seems responsive, and appropriately dismissive.

      the rest of your comment is cut-and-paste gibberish.

      it’s clear you’ve been sent over from wherever to troll here. your goofy style strongly reminds me of another such half-wit who appeared here some weeks ago.

  19. guest says:

    Can someone explain how this limits free speech? In fact, it seems like now that the redskins trademark is no longer protected, the rest of us can use this disparaging term more freely (i.e. without having to worry about cutting a check to Snyder and his minions of lawyers).

    I guess if money is now speech according to Roberts and his gang, sure it’s not fair to deny Snyder his licensing fees from the derogatory term he appropriated from the public domain and added so much value to over the years that he now owns it. Otherwise, I say tough luck (and I really don’t think this is one is so horribly offensive, but on the other hand, I don’t see any value at all in defending it either). As far as I’m concerned, there are just way too many things that are now intellectual property and similar intangible assets than there should be. And killing the redskins trademark is as good a place to start rolling them back as any other.

    • bmaz1 says:

      First, the trademark is still protected, and will remain so until the final mandate in the final appeal, which will likely be SCOTUS, is issued. That is likely to be at least 2-3 years at a bare minimum (last time it was reversed, it took more than twice that long to be done).
      That said, if I had to bet, I would bet this decision, when all is said and done, likely does stand up. Either way, the best thing would be if public pressure brought about a voluntary name change by Snyder instead of being forced by government action. One other thing should be noted,Snyder and the team can keep using the name (and the logo stays protected no matter what), it is just that they lose certain presumptive federal protections. In fact, they could probably enforce their rights under individual state protections, but that makes them string it out. Bottom line, if Snyder doesn’t want to, even if he loses this, he can and will keep using the name.

      • guest says:

        Obviously I overlooked scribe’s very helpful comment before I made my own. But otherwise, I still don’t see why any part of the government and our tax dollars should be obligated to defend this asshole’s property rights to a racial slur.
        To paraphrase Miss Manners, we have to resort to enacting and enforcing laws when standards of common decency just won’t do the trick. And the billionaires who suck out hundreds of millions from cities to massively subsidize their stadiums, and use up precious educational resources for their farm team are completely lacking in any decency.
        The other thing that rankles me about these 1st amendment arguments is they remind me of Andrew Sullivan and his typically contrarian arguments against hate crimes laws that gay-bashing, lynching and other forms of intimidation against minority individuals and communities is some sort of inviolable form of political speech.

        • bmaz1 says:

          Actually, I agree that hate crimes are an abomination. It creates different classes of victims, favoring some over others, and does tend to criminalize thought and speech when the underlying content neutral crime already exists under law.
          These concepts and things matter. The Constitution and First Amendment are not around to protect what only what you find valid and valuable, nor even what the majority does. No, they exist to protect thought and expression of the minority, of that which many may disagree with even virulently. You have to be willing to protect that which you loath in order to truly protect that which you love.

          • guest says:

            So you are against different classes of victims. Does that mean you are against different sentences for killing police officers, or military or others who are considered so critical for our protection? Or against defenseless children or the handicapped or old people? Or against the state, such as terrorism and treason? There are countless factors that are considered in handing out harsher or more lenient sentences in the courts, and I’m sure many many of them could be construed as expressions of protected thought or speech. But I have never ever heard anybody criticize those special classes of victims. Murder and assault and vandalism are not speech. The point of protecting *speech* is so that grievances can be expressed without resorting to the violent tools of revolt that become necessary when speech is suppressed with violence.
            In 1992 when I got gay-bashed they had a hate crime law in Texas that had no extra penalties, it only involved requiring the police report the crime as such (which they absolutely refused to do, because if you don’t acknowledge there is a problem you don’t have to do anything about it, and they sure as hell did not want to lift a finger). I could have been killed, and yet a few days later when I talked to my brain dead republican mother, she acted very upset, yet when I mentioned the refusal of the police to report it as a hate crime, she couldn’t help parrotting that stupid fox news response “all crimes are hate crimes” in a pithy tone. That was when I stopped talking to that stupid see you next tuesday bitch.
            And just like with hate crimes, all the self described liberal concern trolls are so upset about liberal political correctness, and making a big fuss over trivial things like a stupid name for a team that plays an absurd sport (so trivial they have to leave long comments about them).

            • bmaz1 says:

              Yes, frankly, I do not like that either. I don’t think that under the law one human should mean more than another. Our criminal laws are already punitive enough to accomplish any deterrent effect they can possibly have. The rest is just superfluous added on to make some human souls worth more than others. No, I do not approve of that in the least.

      • lefty665 says:

        Hi Bmaz1, while our opinions on the issue vary, I am, as always, interested in your logic on its likely resolution.
        You say “if I had to bet, I would bet this decision, when all is said and done, likely does stand up.” Does that come from your assessment, to paraphrase you from the post, that the SCOTUS majority will likely be made up of white Redskins fans and worshipers of corporate speech? Or, are there other arguments that you expect will carry the day? Thanks.

        • lefty665 says:

          Duh, framed it bassackwards. Your bet varies from the position on fans and corporate speech. What argument ends up in the drivers seat?

          • bmaz1 says:

            If I had to bet real money,it would be on this decision – canceling the trademark registrations – is affirmed. Put another way, I bet that the First Amendment position I sketched out here does not carry the day and reverse the case. But I think, because of the makeup of the Roberts Court, and their history of being protective of commercial speech, it is a lot closer call than many people think. It is even possible they flat reverse it on those grounds. I can see pretty easily compelling arguments on both sides of that.
            And I don’t make much of the fact the Federal Circuit may likely uphold the decision (as they did in the Geller case, discussed doing in the Simpson case and did on the merits in the Fox case. Even if the Federal Circuit remained consistent here, keep in mind that SCOTUS treats the Federal Circuit like a punching bag. For instance, 9 out of 10 decisions in this term from the Federal Circuit that reached SCOTUS were unanimously reversed. Unanimously.
            It is a fascinating issue, and will be interesting to see how it plays out, but that will likely be over a long time.

            • lefty665 says:

              Thanks Bmaz1, just what I asked for! It is indeed fascinating and will be years playing out. We’ll likely have several opportunities for replays.
              In the end Snyder will still be a rich jerk, but that was never in doubt or the question. Bet he hangs onto the name as long as possible, there’s money in it for him as is and big expense to change. Perversely, the controversy likely adds value for him too.

  20. Solbus says:

    i’m really kinda suprised you were reduced to that.

    What, are you a big marshmellow?

  21. solbus says:

    There’s some hard-working activists in the American Indian community that do feel the mascot name change is less important than the immediate issues of contaminated groundwater, poverty, addiction, all that, but I believe the thinking is that part of the key to solving those critical problems is for Indians to be re-humanized so that these problems aren’t continuously abstracted and ignored as problems of invisible communities that don’t matter. And this has been attempted for at least 50 years, but even today the resources are virtually non-existent to correct it. Many communities, including the LGBT’s have found common ground here and are very supportive. (Notwithstanding that there is large community of LGBT’s in the American Indian population itself) – so anyway it often happens that the effort here is trivialized as being that of enforcing political correctness, that itself is a marginalization tactic, a way to shunt the complaint out of the mainstream and ignore it. People often don’t realize they are doing it, but they are.

  22. orionATL says:

    wake up moral cleansers! there’s work to be done. the following universities have nicknames and, worse, mascots which refer to native americans. who knew we were such a benighted, insensitive nation.

    braves – 5 colleges or univs

    chippewas – 1

    choctaws – 1

    cowboys – 9

    indians – 4

    red devils – 2

    redmen – 1

    red men – 1

    runnin’ utes – 1

    seminoles – 1

    thunderbirds – 3

    tribe – 1

    utes – 1

    vikings – 18

    war hawks -2

    warriors – 30

    • liberalrob says:

      What’s wrong with “Cowboys?” I was not aware that that was considered a derogatory term.

      I think the animus is more towards terms based on physical attributes, not so much cultural ones. Otherwise we’d have to take a look at the UL-Lafayette “Ragin’ Cajuns,” Idaho “Vandals,” Ole Miss “Rebels” and the like. (I’d list the “Boston Beaneaters” but they don’t exist anymore.) I don’t think anyone really believes “Vikings” is a derogatory term, not anymore. Similarly “Braves” or even “Indians.” “Redskins” is plainly offensive and should not enjoy government guarantee of commercial protection.

      I wouldn’t think there’d be any First Amendment issue here at all; no one is saying the term can’t be used in public speech.

  23. Betty says:

    Re: First Amendment claim. I don’t think corporations should be considered persons with First Amendment rights. I would suggest that being given trademark protection is a privilege, not a right. Putting aside all the fervor here about whether the term “redskins” actually is offensive, I would hate to see the decision overturned.

  24. bmaz1 says:

    “no one is saying the term can’t be used in public speech.”
    Actually, that is EXACTLY what the PTO and TTAB are saying as regards speech that intersects with the common US government.

  25. John Casper says:

    bmaz, apologies for being off topic, but I applaud emptywheel dot net for not stooping to cover the disgraced Naval War College guy. I hesitate to honor him with the “professor” title and I don’t think he warrants coverage in this space.

    Unfortunately, if he was a spy, the evidence available is that he leaked classifed info in hopes of getting laid. Everything that follows is 100% rhetorical. Is there a graymail defense in his immediate future?

    If that’s the case, should Senators Feinstein, Wyden, ….others consider giving him immunity to allow him to testify in open court?


    Could such an action materially help Chelsea Manning,…. John Kiriakou,….?

    Deepest apologies if this isn’t helpful.

    • bmaz1 says:

      I am no fan of Schindler, but I see nothing criminal to where there would, nor should, be charges of any kind. Frankly, what I have seen looks kind of hoaxed up. To me, at least, Schindler should have been considered discredited on the merits of what he has said, I’ll not traffic any further in the current mess.

  26. Al says:

    I’m confused why there is no discussion of the Federal Circuit and Court of Patent Appeals’ analysis of the First Amendment and 1052(a) in McGinley, Mavety, and Boulevard?

    McGinley 660 F.2d 481 (1981): With respect to appellant’s First Amendment rights, it is clear that the PTO’s refusal to register appellant’s mark does not affect his right to use it. Holiday Inn v. Holiday Inn, Inc., 534 F.2d 312, 319 n.6, 189 USPQ 630, 635 n.6 (Cust. & Pat.App.1976). No conduct is proscribed, and no tangible form of expression is suppressed. Consequently, appellant’s First Amendment rights would not be abridged by the refusal to register his mark.

    Mavety 33 F.3d 1367: Finally, our precedent forecloses Mavety’s challenges to Sec. 1052(a) as unconstitutional on its face or as applied. See McGinley, 660 F.2d at 484, 211 USPQ at 672 (“With respect to appellant’s First Amendment rights, it is clear that the PTO’s refusal to register appellant’s mark does not affect his right to use it. No conduct is proscribed, and no tangible form of expression is suppressed. Consequently, appellant’s First Amendment rights would not be abridged by the refusal to register his mark.”

    Boulevard: Boulevard contends that the application of section 1052(a) to refuse the registration of marks on grounds of vulgarity violates the First Amendment.   Previous decisions of this court and our predecessor court, however, have rejected First Amendment challenges to refusals to register marks under section 1052(a), holding that the refusal to register a mark does not proscribe any conduct or suppress any form of expression because it does not affect the applicant’s right to use the mark in question.   See Mavety, 33 F.3d at 1374;  McGinley, 660 F.2d at 484.   We adhere to the reasoning set forth in those cases and reject Boulevard’s First Amendment challenge.

  27. Al says:

    You said “the TTAB has taken it upon itself to restrict, at least in some regards, the free expression of the Redskins…” and Fox/McGinley/Boulevard/Mavety all disagree with that analysis. I just figured it would be worth mentioning what any of these cases specifically said about that issue. Doesn’t mean I agree or that would argument hold up in a district court and subsequent federal courts on appeal.

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