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
Bob, the MONSTER Congress created.
All these appeals to emotion completely obscures the point Turley is making.
Turley: “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.”
This isn’t about Indians; this is about a MONSTER on the loose.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
Can the toothpaste ever be put back in the tube?
“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.”
It gives a tiny office the power to decide what is offensive, rather than the majority of the population actually referenced. It’s decisions would be completely arbitrary – would “chieftains” “braves” or any other Native American term also be considered offensive? I know a few Native Americans, and they love being represented as a symbol of bravery and acumen in sports. They have no problem with the term “redskins”.
Personally, I do not like the term “redskin” on its own, because we do not refer to people that way in modern society. I do have fond memories of watching the Redskins team, though. In my opinion, white people (including those in a trademark office) don’t get to vote. American Indians do. And the overwhelmingly vast majority do not oppose the name of the Washington Redskins. It’s not up to me; it’s up to them. When the majority oppose it, then we change it. Since the overwhelming majority, something like 90%, support the team, how are they going to feel when and if all team names that reference American Indians in any way get removed? They will no longer be viewed as symbols of bravery and toughness, no reference to their history . . .
When people ignore the wishes of the majority of the people the term actually affects, that’s not compassion, it’s the PC police run amuck again.
The law prohibits trademarks on disparaging terms. Redskins is a disparaging term. It always has been and the disparagement was intended when it was adopted. People saying the word is one thing, protecting the making of money by its use through legal protection is something else entirely. This was a good, albeit late in coming, decision.
I’ve never used the term in speaking of or to the indigenous people of this county. My understanding of the term is that it came from the barbarous acts of some who would literally skinned the natives alive, thereby producing a “red skin”. I learned this many years ago. I have tried to find a reference to it but failed. I suspect it to be a part of our history that was buried.
bettykath – if you want the historical usage of a term go to the OED. It does not cover slang or profanity though.
http://www.desertcompanion.com/images/0213_politics.jpg
There Oughta Be a Law!
“Is there anyone who is not offended by the words I have written here?”
The mental state of “being offended” is always a choice. Always.
Watch the film Blazing Saddles, along with Brooks’ directors notes, as many times as needed for that to sink in.
Annie, True enough. They can’t even put Lois Lerner in jail.
http://www.economist.com/blogs/gametheory/2014/06/redskins-controversy “Second, this is the point in the column where I’m supposed to discuss whether Dan Snyder, the Redskins’ owner, should change the name, regardless of the court’s ruling, on sheer principle. But really what’s the point? The team’s name is self-evidently a racial slur. If Mr Snyder cared that it offended large groups of people he’d change it. But he has repeatedly shown himself to be indifferent to public contempt. Perhaps Mr Snyder will one day grow tired of the public opprobrium. But I suspect at some point he, and perhaps the NFL’s other owners as well, will realise what an enormous amount of money they all stand to make on rebranding the team. That, not the easily overturned ruling of an obscure federal agency, and not, unfortunately, public opposition, is what will eventually relegate the Redskins name to the trash heap, where it belongs.”
Bob Esq., I like your remedy!!
Excellent article Prof. Turley!
“To paraphrase Clausewitz, water, taxes and even trademarks appear to have become the continuation of politics by other means.”
Using administrative law agencies to further political agendas should be a criminal offense punishable by immediate removal from office and possible jail time.
You want Congress to DO Something? This Congress of ‘do nothings’ ? Who are we kidding?
The market, not the govt. should take care of this issue. What about Oklahoma (Red People)? What about the Rap music industry? There must be tons of offensive trademarks stuff there.
The great Malcolm X changed the ever changing word from Negro, colored, Afro American, etc. to black. “You are black people, you are not colored, YOU ARE BLACK, be proud of that, call yourself that.” I have seen white PCers look @ me w/ scorn when I use the term coined by Malcolm X. You see, PCers want to limit you to “African American.” And, the majority of these PCers are white liberals who have never had a black person in their house. I will ALWAYS call black people black. It is a tribute to a man who would NEVER abide these evil attacks on free speech.
Tyger, Glad it is a joke, and you are not one of those “keep the white house white folks”.
I agree completely with Professor Turley. Whether you find the name offensive is not the point. The agency acted outside the purview of its authority. Congress clearly needs to reign in not only this agency, but all of them. Congress needs to take back its legislative authority and stop box the Executive Branch and the administrative agencies from usurping its authority.
Yes, swarthmoremom, I know that. Few people understand my sense of humor.
Dr. Harris, You continue to impress. A second term of a Presidency often shows what a man is really about and what he really thinks. We have seen this President to be about wanting to be a King. Maybe it’s being raised in Hawaii.
We have gone over this MANY times previously. The Indian leaders are adamant on this, rank and file Indians could give a rat’s ass. I had a Indian activist speak @ a class I took in 2001. He was forthright in admitting as much when I asked him. Polls verify it. This shows just how ruthless the haters of the First Amendment are. They seek something that the wise Dr. Harris explained so well. They seek a culture where no one is offended. And, they will strip you of your freedoms in their quixotic journey to achieve it. PC is pernicious and must be stopped wherever it raises its evil head. You see, it is evil w/ a veneer of kindness.
In my previous post here, I originally wrote (StartJoke) at the beginning and (EndJoke) at the end, but I used angle brackets instead of parenthesis to mimic programming code. This system obviously is prejudiced against HTML, as it stripped out my warning labels as delimiter tags. Censorship is everywhere!
Tyger, The White House has been given a coat of white paint since 1798. It has to do with color of the residence not the skin tone of the resident.