Redskins Controversy: Does Trademark Law Violate First Amendment?

Yesterday’s decision from the Patent and Trademark Office (PTO) to cancel the trademark protections of the Washington Redskins professional football team, ruling that the word “redskins” is disparaging to Americans descended from indigenous people instead of immigrants, has sparked an energetic conversation raising serious legal and constitutional issues.

Trademark law permits PTO to reject trademark protection to terms that PTO finds disparaging. Specifically, PTO may deny trademark registration under 15 U.S.C. § 1052 when a term, “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

Lawyers for the Redskins argued that the trademark is (1) old and (2) well used, and (3) has tremendous financial value as a brand name. And one judge on the Trademark Trial and Appeal Board dissented from the decision to revoke the Redskins’ longstanding trademark protection.

To be clear: the federal government is not banning anyone from using the term “redskins.” Instead, PTO is saying they no longer have the right to use the term exclusively to retain all financial benefits from its use.

But whether pure censorship or financially detrimental, the restrictions in the statute very quickly give rise to serious First Amendment questions.

In an age of increased political correctness, how many descriptive terms run no risk of someone alleging disparagement? What of the Cleveland Indians? Early European settlers of North America used the term “Indian” because they wondered if they had traveled all the way to Asia, and thought the indigenous people’s skin color looked like inhabitants of India.

Can you say “Indian?” Or is assigning the term “American Indian” to formerly-indigenous people likewise disparaging to Americans whose ancestors came here from India, since those are the literal “Indians” to begin with?

But if you only use “Native American,” is that disparaging to almost 300 million Americans who are white, black, Hispanic, or Asian, who were born on American soil and whose ancestors may have come to the United States centuries ago, somehow implying that they are not “native” to this land on equal footing with formerly-indigenous people?

How far does this go, and is this a slippery slope? What if supporters of traditional marriage were to trademark the name “Natural Marriage Team” or similar word choice? Homosexuals have increasingly objected to the term “natural marriage” for heterosexual marriages.

Also whether a term concerns something “immoral” or “brings [someone] into contempt” can change over time. Consider actual national groups like Queers for Economic Justice, or local groups like the Queer Alliance Resource Center, which is an organization at the University of California at Berkeley.

Could they get a trademark? Was “queer” disparaging 20 years ago or alleging immorality, but not today? Moreover, a legal argument can be made (and is being pushed in several federal court cases right now) that modern Supreme Court precedent does not even permit the federal government to make such moral judgments on sexuality anymore.

To address other social groups or issues, could PTO deny them a trademark to a pro-life group formed under the name “Coalition to Stop Pro-Abortion Zealots,” alleging this disparages supporters of abortion rights, and insisting that they be called “pro-choice” instead?

On the other hand, there are terms that are deeply offensive to many millions of Americans, and not considered respectable speech in polite conversation. There are particular terms leveled a racial minorities–whether black, Hispanic, Asian, or Jewish–that are unkind and can give deep personal offense.

Reasonable people can disagree on where to draw the line on such things, or whether government should draw such lines at all. In a free society that treasures freedom of opinion and speech, there is always a danger that government will draw lines that promote a political agenda under the guise of enforcing civility.

The courts–especially the Supreme Court–have been reluctant to engage in these profound First Amendment questions regarding trademarks. If the federal courts cannot resolve this matter on statutory grounds in favor of the football franchise, the time may have arrived where the courts can no longer evade these constitutional questions.

Ken Klukowski is senior legal analyst for Breitbart News and a fellow with the American Civil Rights Union. Follow him on Twitter @kenklukowski.