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
Nick, I went to a high school in Pine Bush, NY. Our mascot was the Pine Bush Bushmen. So you might ask, what did he look like? He was a short fat whitish caveman with a club. It wasn’t until later when you learned about hunter and gather’s that you really understood just how stupid the mascot really was. But, it was how stupid it was that made it kind of endearing. I believe it is still the same today.
http://www.usatoday.com/story/sports/nfl/redskins/2014/06/18/washington-redskins-name-change-trademarks-daniel-snyder/10812885/ I think the name change will happen sooner than later because public opinion is evolving in that direction.
Paul wrote “but it is still the United Negro College Fund and the National Association for the Advancement of Colored People”
And if African-Americans are bothered by that, they can change it. Research the term “standing” in a legal dictionary.
Karen S wrote “It gives a tiny office the power to decide what is offensive”
The term “redskin” has been considered offensive for a very long time. The complete definition of “redskin” from my Webster’s Ninth New Collegiate Dictionary from 1985 is: “AMERICAN INDIAN — usually taken to be offensive.” From 1985.
Karen S wrote “They will no longer be viewed as symbols of bravery and toughness, no reference to their history”
Historians are not confused between references to Native American tribes in history books and cartoonish representations of them for profit.
saucy – my comment was because the head of the museum pointed out both Negro and colored as offensive terms. Which goes to show the depth of his knowledge.
A corn jerker is the same as a corn picker.
Karen, The original HS in Yuma burned down. So, they moved into the abandoned State Prison, thusly the name. They sell a lot of apparel!
Paul – and the Scotts don’t like being called Scotch. I suppose Scotts, Irish, and Welsh can be called those-who-descended-from-people-with-impenitrable-accents.
Karen – they speak Celtic, with a hard C or K, not the soft C used by the Boston basketball team.
To show the hypocrisy of these politicians, I would take a camera to a Redskins game and videotape all the self righteous DC pols attending Redskin Games. Now, it would be tough because they’re all in private, luxury boxes. I have to believe our President attends, certainly when the Bears are in town.
Who picked the “Criminals” mascot???
Karen – Yuma does not have a lot of touristy things to do, so it could have been the administration or the students who picked the mascot.
Nick – oh my gosh! What the heck is a corn jerker? I like the idea of the school having a say. And that’s what will naturally happen if a term becomes really offensive.
LOL! In PaulS neck of the woods are the Yuma HS Criminals! The height of insensitivity.
Nick – Yuma is where the Territorial Prison still stands, hence the Yuma Criminals. You can tour it and I suggest it. Think of being in the place in the hot Arizona summer sun. It is enough to make you want to give up crime.
Paul is correct, that polls show overwhelming support, or lack of offense, by American Indians:
http://www.usatoday.com/story/sports/nfl/2013/05/02/washington-redskins-name-poll-associated-press-gfk/2131223/
The team was named to honor the head coach, who identified himself as an Indian. This was in the 1930s, so it meant a lot in those times. To throw further controversy into the mix, he may have pulled an Elizabeth Warren and misidentified himself.
Yes, we should have discussions periodically, as times change and terms that were benign fall out of favor and take on negative connotations. But I’ve always felt that the decision should be up to the group actually referenced by those terms. If a minority of American Indians really feel that strongly about it, then they should convince the rest of the community. In the Age of the Internet, opinion can change rapidly. When the majority of an affected group want the name changed, then their wishes should be honored.
For reasons I’ve never understood, IL. has some of the most weird HS mascots. We have discussed previously, up until the 80’s, Pekin, IL. had The Chinks as their mascot. It did not take a court ruling or govt. agency, the students changed the name. That’s how it should work. Their school, they choose.
Freeburg, IL has the Midgets as their mascot. Should the govt. change that? Brewer, Maine has the Witches. The Fredonia Hillbillies in NY. The Hoopeston, IL. Cornjerkers! The columnist David Corn would certainly be offended. The Watersweet Nimrods. The Freeport Pretzels are offensive to people w/ Celiac disease. The Jordan, ID Beetdiggers, very demeaning! The Martinsville, IL Brownstreakers. Those poor people who have problems wiping themselves are mortified by this insensitive mascot. Orofino, ID Maniacs, hell I know some people here who would be offended. I could go on.
Saucy, the incompetent, do nothing, intransigence of this Congress has now bitten those who want a new law reining in monster agencies in the derrière. You can’t have it both ways. The overreach of the Executive was a direct result of this intransigence. The Congress created the biggest monster ever, an Imperial Presidency. Congratulations!
Saucy:
“I’m someone who believes that we should lose all colors and refer to blacks as African-Americans, whites as European-Americans, etc. My skin color is not white, anyway.”
I agree that we need new identifiers. We’re all shades of brown, really – Albino eggshell, cream to ebony. I haven’t liked the term “African-American” because it is a mouthful, and the hyphenation seems to amend their state of being American. We either need to hyphenate everything – Middle-Easter-American, European-American, African-American, which would be really long, or we need some more creative list of terms. We do need physical descriptions, such as when someone goes missing, that make sense.
It’s funny that we use the term “Caucasian” which would make us Armenian.
Karen – England, Scotland, Ireland and Wales do not consider themselves part of Europe, so what do we call them?
Saucy, there are some folks who just can’t imagine that anyone else hasn’t had as wide of a cultural experience that they have. It’s another example of jumping to conclusions and making assumptions based on… Nothing.
Paul wrote “Only 5 Indians brought down the trademark”
Did you read the ThinkProgress article swarthmoremom referenced?
Paul wrote “many Indians did not care or even supported the name”
And you know this how?
Annie wrote “Bob, the MONSTER Congress created”
Exactly. If Congress does not like the situation, it can resolve it by passing appropriate legislation.
Help! Lot a post!
Paul – oh my gosh, that’s right. Why the furor over Redskins when the word “negro” and “colored person” are still part of those two organizations’ names? I think we would have far more public support to change those.
Bob – you are absolutely right. These agencies begin to basically create laws without representation or answerability to the public.
swarthmoremom quoted the Economist “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”
After the team is renamed, much of their fan base will buy new t-shirts, jerseys, and other fan essentials. Snyder and the NFL will make a killing. But Snyder is one of those people who believes he is a world-class genius. No one tells these people what to do. Even though it is in his best interest to change the name, he will go kicking and screaming all the way.
Nick wrote “changed the ever changing word from Negro, colored, Afro American, etc. to black”
Negro is as wrong as Caucasian, as you and I do not hail from the Caucasus Mountains.
I’m someone who believes that we should lose all colors and refer to blacks as African-Americans, whites as European-Americans, etc. My skin color is not white, anyway. That said, “redskin” is much worse than saying someone is black or white. Next time you meet an Asian-American, ask him if it is okay if you call him “yellowskin.” Would you call an African-American “blackskin”?
Nick wrote “the majority of these PCers are white liberals who have never had a black person in their house”
In my experience, you are dead wrong here. Almost every liberal I have ever met has lots of minority acquaintances. Most liberals have LGBT friends and therefore assume that so does everyone else.