Below is my column in the Sunday Washington Post on the stripping of the trademark protection from the Washington Redskins. The decision effectively negates a decision in 2003 by the Trademark Trial and Appeal Board that barred a challenge to the Redskins name on the basis that such a challenge had to have been made soon after the Redskins registered their nickname in 1967. In 1999, another court issued a similar ruling. This use of the trademark laws creates a dangerous slippery slope as the agency identifies names that it considers disrespectful. House Minority Leader Nancy Pelosi celebrated the decision as sanctioning “disparaging or offensive names” and added “[w]hile we respect the right to free speech, slurs have no right to trademark protections.” But what of other “slurs” that reference ethnicity like the Atlanta Braves or the combative Kansas City Chieftains. There is also the cartoonist grinning Chief Wahoo of the Cleveland Indians. These teams have critics who say that the names and images are offensive. What is the objective line to distinguish such teams? The column focuses on the highly ambiguous standard in the federal law that would seem to make a vast array of marks as potentially violative and unprotected.
The decision this past week by the U.S. Patent and Trademark Office to rescind federal trademark protections for the Redskins may ultimately tip the balance in the controversy over the 80-year-old name of Washington’s football team. If so, that would be a shame. Not because there’s insufficient reason to consider the name “disparaging to Native Americans,” as the patent office determined. Many of us recoil at the reference to skin color as a team identity. The problem is that the Redskins case is just the latest example of a federal agency going beyond its brief to inappropriately insert itself in social or political debates.
Few people would have expected the future of the Redskins to be determined by an obscure panel in a relatively small government agency. Yet the Trademark Trial and Appeal Board showed little restraint in launching itself into this heated argument — issuing an opinion that supports calls for change from powerful politicians, including President Obama and Senate Majority Leader Harry Reid (D-Nev.). The board had at its disposal a ridiculously ambiguous standard that allows the denial of a trademark if it “may disparage” a “substantial composite” of a group at the time the trademark is registered.
This standard isn’t concerned with how widely offensive a trademark may be now, or with how the general population or even a majority of the group in question views it. It didn’t matter to the patent office that polls show substantial majorities of the public and the Native American community do not find the name offensive. A 2004 Annenberg Public Policy Center poll found that 90 percent of Native Americans said the name didn’t bother them. Instead, the board focused on a 1993 resolution adopted by the National Congress of American Indians denouncing the name. The board simply extrapolated that, since the National Congress represented about 30 percent of Native Americans, one out of every three Native Americans found it offensive. “Thirty percent is without doubt a substantial composite,” the board wrote.
Politicians rejoiced in the government intervention, which had an immediate symbolic impact. As Sen. Maria Cantwell (D-Wash.) said Wednesday: “You want to ignore millions of Native Americans? Well, it’s pretty hard to say the federal government doesn’t know what they’re talking about when they say it’s disparaging.”
For the Washington Redskins, there may be years of appeals, and pending a final decision, the trademarks will remain enforceable. But if the ruling stands, it will threaten billions of dollars in merchandizing and sponsorship profits for NFL teams, which share revenue. Redskins owner Dan Snyder would have to yield or slowly succumb to death by a thousand infringement paper cuts.
The patent office opinion also seems to leave the future of trademarks largely dependent on whether groups file challenges. Currently trademarked slogans such as “Uppity Negro” and “You Can’t Make A Housewife Out Of A Whore” could lose their protections, despite the social and political meaning they hold for their creators. We could see organizations struggle to recast themselves so they are less likely to attract the ire of litigious groups — the way Carthage College changed its sports teams’ nickname from Redmen to Red Men and the California State University at Stanislaus Warriors dropped their Native American mascot and logo in favor of the Roman warrior Titus. It appears Fighting Romans are not offensive, but Fighting Sioux are.
As federal agencies have grown in size and scope, they have increasingly viewed their regulatory functions as powers to reward or punish citizens and groups. The Internal Revenue Service offers another good example. Like the patent office, it was created for a relatively narrow function: tax collection. Yet the agency also determines which groups don’t have to pay taxes. Historically, the IRS adopted a neutral rule that avoided not-for-profit determinations based on the content of organizations’ beliefs and practices. Then, in 1970, came the Bob Jones University case. The IRS withdrew the tax-exempt status from the religious institution because of its rule against interracial dating on campus. The Supreme Court affirmed in 1983 that the IRS could yank tax exemption whenever it decided that an organization is behaving “contrary to established public policy” — whatever that public policy may be. Bob Jones had to choose between financial ruin and conforming its religious practices. It did the latter.
There is an obvious problem when the sanctioning of free exercise of religion or speech becomes a matter of discretionary agency action. And it goes beyond trademarks and taxes. Consider the Federal Election Commission’s claim of authority to sit in judgment of whether a film is a prohibited “electioneering communication.” While the anti-George W. Bush film “Fahrenheit 9/11” was not treated as such in 2004, the anti-Clinton “Hillary: The Movie” was barred by the FEC in 2008. The agency appeared Caesar-like in its approval and disapproval — authority that was curtailed in 2010 by the Supreme Court’s decision in Citizens United.
Even water has become a vehicle for federal agency overreach. Recently, the Obama administration took punitive agency action against Washington state and Colorado for legalizing marijuana possession and sales. While the administration said it would not enforce criminal drug laws against marijuana growers — gaining points among the increasing number of citizens who support legalization and the right of states to pass such laws — it used a little-known agency, the U.S. Bureau of Reclamation, to cut off water to those farms. The Bureau of Reclamation was created as a neutral supplier of water and a manager of water projects out West, not an agency that would open or close a valve to punish noncompliant states.
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.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and has testified in Congress about the shift of power in the federal system to federal agencies.
WASHINGTON POST SUNDAY June 22, 2014
As a white man, I find it offensive that the home of the President of the United States in Washington, D.C., the capitol of the nation, is called “The White House”, considering who the current residents are there. The name is intentionally deceptive to the American public, and the government should get its nomenclature right and stop being so racially prejudiced.
gentlemanguyfawkes – Mr Clean?
J. Brian Harris wrote “How about ‘Bears,’ as in, ‘The Chicago Bears,’ being offensive to some zookeepers?”
You are comparing apples to oranges. If bears filed suit, you might have a point. By the way, you really need an editor.
Jerry Dolan quoted a letter sent to the Chicago Tribune’s Clarence Page “One might argue that to name a professional football team after Native Americans would exalt them as fine warriors”
The hillbilly letter-writer is not intelligent enough to understand that referring to Native Americans by the color of their skin is the same as calling Asians “yellow people” or people of African origin “darkies” and does not remotely exalt them.
http://www.usnews.com/news/articles/2014/06/18/patent-office-revokes-redskins-a-second-time-but-in-a-changed-climate ” “We’ve reached a tipping point where there is a growing awareness of the name,” says National Museum of the American Indian Director Kevin Gover, a member of the Pawnee Nation of Oklahoma who compared “Redskins” to terms like “Negro” and “colored” that were once used to describe African-Americans but now deemed offensive. “Now that people know better, we expect them to do better, and that has changed in the last 20 years.” “
SWM – Great comment by the museum guy but it is still the United Negro College Fund and the National Association for the Advancement of Colored People.
swarthmoremom wrote [7 Things That Convinced The U.S. Patent Office To Cancel The Redskins Trademark]
From that article:
– “This picture of cheerleaders”: imagine the uproar if a team named “Darkies” had cheerleaders dressed in blackface. Or to put it in terms JT can personally appreciate, how about team named “Ginzos” with a cheerleading squad dressed as mafia members?
– “The dictionary definition of Redskins”: the complete definition from my Webster’s Ninth New Collegiate Dictionary from 1985 is: “AMERICAN INDIAN — usually taken to be offensive.” So this is hardly new.
JT is simply wrong on this one.
Didn’t Congress create all these agencies? Will the same entity, Congress, have the guts to restrain them? There outta be a law? Doubtful that the Congress will do it.
Here is an email sent to Clarence Page of the Chicago Tribune after an article he
published concerning a name change for the Washington Redskins. Good letter.
Dear Mr. Page…
I always love your articles. and I generally agree with them.
I would suggest, as in an email I received, they change the name to the “Foreskins” to better represent their community,
paying tribute to the dick heads in Congress.
Here are some other politically correctness to consider:
I agree with our Native American population.
I am highly insulted by the racially charged name of the Washington Redskins.
One might argue that to name a professional football team after Native Americans would exalt them as fine warriors, but nay, nay.
We must be careful not to offend, and in the spirit of political correctness and courtesy, we must move forward.
Let’s ditch the Kansas City Chiefs, the Atlanta Braves and the Cleveland Indians.
If your shorts are in a wad because of the reference the name Redskins makes to skin color,
then we need to get rid of the Cleveland Browns.
The Carolina Panthers obviously were named to keep the memory of militant Blacks from the 60’s alive.
Gone. It’s offensive to us white folk.
The New York Yankees offend the Southern population. Do you see a team named for the Confederacy?
No! There is no room for any reference to that tragic war that cost this country so many young men’s lives.
I am also offended by the blatant references to the Catholic religion among our sports team names.
Totally inappropriate to have the New Orleans Saints, the Los Angeles Angels or the San Diego Padres.
Then there are the team names that glorify criminals who raped and pillaged.
We are talking about the horrible Oakland Raiders, the Minnesota Vikings, the Tampa Bay Buccaneers and the Pittsburgh Pirates!
Now, let us address those teams that clearly send the wrong message to our children.
The San Diego Chargers promote irresponsible fighting or even spending habits. Wrong message to our children.
The New York Giants and the San Francisco Giants promote obesity, a growing childhood epidemic.
Wrong message to our children.
The Cincinnati Reds promote downers/barbiturates . Wrong message to our children.
The Milwaukee Brewers—well that goes without saying . . . Wrong message to our children.
So, there you go.
We need to support any legislation that comes out to rectify this travesty, because the government will likely
become involved with this issue, as they should.
Just the kind of thing the do-nothing congress loves . . .
As a diehard Oregon State fan, my wife and I, with all of this in mind, it might also make some sense to change the name of the
Oregon State women’s athletic teams to something other than “the Beavers.”
Jerry Dolan – as an ASU graduate could I suggest a name change to the Oregon State Little Beavers.
Methinks that there cannot ever be so much as one single word that someone cannot find to be offensive.
Consider social prejudice against single people. I first saw my wife, some time before we first talked by telephone with each other to arrange our first date, when she and some other people were on a Chicago television station broadcast when she was an active member of COST (the Committee of Single Taxpayers).
She was a member until we were married, then she no longer qualified for COST membership because she was no longer single.
So, “single” may be an offensive word.
It gets worse and worser…
The word, “word” or “Word” may be offensive to many people.
Consider people who are genuine atheists, and who need words tor interpersonal communication, and find the following use of the word, “Word” to properly be offensive:
From the New American Bible: New Testament, © 1986, Confraternity on Christian Doctrine, Washington,D.C., John 1:1, “In the beginning was the Word, and the Word was with God, and the Word was God.”
So, if I am in a group of people and I say the word, “Word,” to the group, and one or more people in the group are genuinely sincere atheists, surely they have a right to be profoundly offended by my use of the word,”Word,” because my using it is my abusively coercive proselytizing effort to teach Christianity to them, against their will, and, also, perhaps, outside their conscious awareness.
How about “Bears,” as in, “The Chicago Bears,” being offensive to some zookeepers?
Making a symbol for something exactly equivalent to the something symbolized can make every symbol and everything symbolized offensive. Indeed, for all I can yet discern, doing that may offend me more than anything else.
Why so? it is the worst offense I have yet been able to find or imagine in the scientific fields of semiotics and biosemiotics.
Is there anyone who is not offended by the words I have written here?
Makes one wonder when the likes of an Ann Althouse, the Civility Bulls*it Queen agrees with a Professor Turley on speech what has gone wrong. She wrote a blogpost about this article yesterday.
http://thinkprogress.org/sports/2014/06/18/3450434/7-things-that-convinced-the-us-patent-office-to-cancel-the-redskins-trademark/
Paul,
5 Indians did not take down the use of the Redskins name. It was taken down by the continued insensitivity of the owners to Native Americans. I have to disagree with Prof. Turley. First of all the Annenberg poll is a decade old and I don’t think it represents what the current beliefs are now. Secondly, wasn’t the Clinton movie barred because of a PAC or 501c3 was funding it and not because of any free speech issues? Maybe I am remembering it wrong.
This problem of government using its official powers to curb free speech, where the speech is determined to be objectionable by one or a few government bureaucrats, is seen at its worst in Family Courts. The judges there will issue full blown orders with criminal sanctions attached, telling litigants that they cannot communicate or publish their experiences, criticisms or events taking place in their own cases.
An article I wrote on their recklessness in general, details it in all its disgusting glory:
http://www.avoiceformen.com/men/fathers/american-family-courts-the-first-amendment-and-violations-of-free-speech/
Paul wrote: “this is based on racial stereotypes of the Irish” You might mean ethnic stereotypes not racial stereotypes. I am about three quarters Irish, and I don’t support your proposition.
SWM – you are right about the ethic slur on the Irish. BTW, I was not counting on your vote anyway. 😉
JT wrote “What is the objective line to distinguish such teams?”
Gee, how about … if it was ever used as a racial epithet, it is not allowed. Braves, warriors, chiefs, etc., are all okay, but any reference to color is not.
Paul wrote “this is based on racial stereotypes of the Irish”
I already proved to you that your opinion is not universally held.
saucy – does not matter if the opinion that it is a racial stereotype is universally held. Only 5 Indians brought down the trademark for the Washington Redskins, many Indians did not care or even supported the name.
Just don’t mess with the Blackhawks
There is a somewhat (not entirely) irrational tendency to jump to the defense of free speech when it should be considered in light of other issues. I don’t want to limit free speech, but I also don’t want to provide legal protection to disparaging terms. We all know and happily accept that this is not the only government-imposed restriction on free speech (e.g., inciting violence or protecting safety). Yes, there is an arbitrary element; but I have neither thought nor read of a better solution. When competing rights and social injustices collide, people are forced to make difficult rational decisions.
I am a short, white, middle aged, balding white guy. Go trademark that!!!!
Yes, nomenclature is important.
Clear the air of old rotting hangups.
Lose the racism that has been subconscious too long.
I could not agree with you more.
I have one other person who has joined me, but I need at least three more people of Irish descent who will join me to attack the mascot and name of the mascot of the University of Notre Dame, “The Fighting Irish.” Clearly this is based on racial stereotypes of the Irish and needs to be taken down. Please, all my brother and sister Irishpeople join me in destroying this stain on our honor.
If 5 Indians can take down the Redskins, 5 Irish can take down “The Fighting Irish.”