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
I don’t think the disparagement standard is all that complicated. If I walk into a room of full of people and see a group from a particular classification, I ask myself would I say to them, “Oh, hi there my _______________ friends.” if think the fill in the blank would offend them in my opinion, it’s probably disparaging. And one more thing, I’d never call them Redskins — unless they were potatoes.
Afterthought: 2) Or perhaps just change the monument’s name to Code Talkers National Monument and leave the canyon’s name alone. Or maybe select another formation, such as the big rock with a hole in it called “The Ear of God”, or someplace similar, and designate it as a new national monument. That could be done by presidential decree and would likely have the support of nearly everyone. 1) Yes, there is no love between the Navajo and the Hopi.
Tyger Gilbert wrote “no articles I ever read have mentioned any other tribes except the Navajo Code Talkers”
I’m no expert, but I think the movie had something to do with it. I’ve never seen the totals-by-tribes of Code Talkers, so maybe the majority were Navajos.
“naming a football team the ‘Code Talkers’ would be an insult to those honorable men”
That’s a good point. Maybe we should restrict the names of sports teams to animals and other innocuous things. I was just trying to think of the alternatives to “Redskins.”
Thank you, Saucy. I just updated my knowledge of the Code Talkers. Funny, how the media, whether intentionally or unwittingly, is biased according to area of the publication. The articles you linked to all make a passing reference to the Navajos, but focus on their local tribes. Here in Arizona, where I’ve lived for 45 years, no articles I ever read have mentioned any other tribes except the Navajo Code Talkers. Now I know better.
Regardless, I think naming a football team the “Code Talkers” would be an insult to those honorable men who performed a great service for this country at considerable risk to their own lives and despite the government’s historically horrible treatment of their peoples. Naming a massive range of mountains for them might be appropriate, but not a football team. That would be more demeaning than “Redskins”, which is only frivolous at best.
Tyger – couple of things 1) the Navajos know how to handle their own PR. 2) What do you think about renaming the Supersititions, the Code Talkers?
Paul — 1. What the hell does that mean? I’m not supposed to express my own opinions of them? 2. That would be an example of what I said might be appropriate, although a range farther north on the actual Navajo Nation land would be better, assuming they would want it that way. Erecting monuments and renaming mountains is mostly political bull manure meant to glorify war and perpetuate the fighting and destruction that drives the military-industrial profit machines, anyway. Everyone except the financiers are victims in war.
When Janet Napolitano, the then Nazi lady governor of Arizona who later went on to head the American SS, aka the Department of Homeland Security, decided to go around all legal procedures and rename Squaw Peak, a prominent mountain in the middle of Phoenix, to Piestewa Peak by her own proclamation, in honor of the first female American Indian soldier killed in combat, Lori Piestewa, who was a transport driver in Iraq who made a wrong turn and got ambushed, I said it would have been more appropriate (after getting the consensus of the citizens of Phoenix and going through the proper channels) to rename it “Code Talkers Peak” to honor an entire important and historic group, rather than just one individual. Instead, we got a maneuver by Napolitano meant to gain political points for her. And now you know my opinion of that, too.
Tyger – 1) remember how the Navajos treated the Hopi. And you can express all the opinions you want. 🙂 2) Maybe the Canyon de Chelly could be renamed Canyon de Code Talkers. 3) Napolitano went to the site naming commission which refused to fall into line so several were put under so much pressure they resigned. She then replaced them with her own people who approved the name change. I got involved with this because she was claiming the word squaw was derogatory, it wasn’t and isn’t. The conflict was based on a paper by two high school girls using bad research from a Canadian academic, who really heavily qualified her work. Somehow they got MN to change the name on a lake or something and that started the ball rolling. I was appalled at the poor research Napolitano was using to ram through the name change.
BTW, I still call it Squaw Peak and the Squaw Peak Parkway.
Paul — 3) Yep. Exactly. I did too. It wasn’t, and isn’t. She didn’t care. It was a political points thing for her. I still do, and so do a lot of other people, either in defiance, or just out of years of habit.
ShakingMyHead wrote “they have had the name since induction/ introduction”
Wrong, genius, the team’s first name was Boston Braves.
just another distraction they have had the name since induction/ introduction now suddenly there is a issue with it? oh please the dumbing down get worse everyday
Tyger Gilbert wrote “‘Code Talkers’ wouldn’t be applicable to all Indian tribes, as only the Navajos were recruited for that during WWII”
Wrong. Cherokee and Choctaw tribes were the original code talkers in WWI. Navajo, Lakota, Meskwaki, and Comanche tribes were involved in WWII.
rapidcityjournal.com/news/article_9668c6fe-7a8a-11df-ab6b-001cc4c002e0.html
usatoday30.usatoday.com/news/nation/2002/07/06/codetalkers.htm
http://www.washingtonpost.com/wp-dyn/content/article/2005/07/25/AR2005072501542.html
We could bring it up for vote via the Bureau of Indian Affairs and let Native Americans decide if the phrase adequately represents all Native Americans.
The last living Navajo Code Talker died just a few weeks ago.
Sorry, Saucy, but “Code Talkers” wouldn’t be applicable to all Indian tribes, as only the Navajos were recruited for that during WWII because they could speak in their native Navajo language and the government figured the Japanese would likely never figure it out. It worked.
Since the team in question represents the city of Washington, D.C., more appropriate nick-names would be “Warmongers”, “Liars”, “Thieves”, or even “Tyrants.” The American government historically was only interested in conquest and control over the indigenous peoples of the country, and that has never changed. To imply the team in any way represents Native Americans, no matter how noble or honorable the name and mascot may be, is simply another lie and intentional deception by rich white men on everyone else.
Richard Faust wrote “The establishment was packed with unrepentant Navajos wearing every type of Redskin garb you could imagine as they prepared to watch the Super Bowl”
If a good number of Native Americans believe that an NFL team represents them, then they wouldn’t want to change the iconography of the team. However, it is also clear that a good number of Native Americans intensely dislike the “Redskins” name.
Eliminate the “Redskins” moniker, and replace it with a more attractive Native American one: “Warriors,” “Braves,” or “Code talkers.”
Two things to add to (or subtract from) this controversy: 1. Super Bowl XXVI was contested between the Washington Redskins and Buffalo Bills (by the way I choose to not comment on the relationship between “Buffalo Bill” Cody and his vaudeville circuit sidekick Sitting Bull–a true Redskin–Hunkpapa Lakota–in order to avoid further complicating this conundrum) in Anishinabe country, Minneapolis, MN, where the largest minority group is Norwegians. During the pregame show (CBS), as Clyde Bellecourt and other local leaders of the American Indian Movement protested outside the Hubert H. Humphrey Metrodome, the broadcast segued to a sports bar located in the largest Native American jurisdiction in the the US–the Navajo Nation (Dine Bikeyah). The establishment was packed with unrepentant Navajos wearing every type of Redskin garb you could imagine as they prepared to watch the Super Bowl. “Buffalo Bill” was defeated by the Redskins, 37-24; and, 2. is it true that the US Patent and Trademark Office is looking into one of my favorite snacks, made legendary by “Take Me Out to the Ball Park”, “Cracker Jack”? Say it ain’t so? Over and out.
Bob, Esq. wrote “Using administrative law agencies to further political agendas should be a criminal offense punishable by immediate removal from office and possible jail time”
Was it okay when Eisenhower ordered the 101st Airborne Division into Arkansas to ensure that nine children were able to attend school? Or was that an over-reach?
Paul wrote ” Only 5 Indians brought down the trademark”
Is nine acceptable?
http://eisenhower.archives.gov/research/online_documents/civil_rights_little_rock.html
Rename the Washington team to the ManySkins.
I do not want the Redskins renamed but if they are going to, then my vote goes to the Washington Foreskins. Fore represents our Forefathers and skins represents the many skins in the game.
bettykath wrote “we’re probably all from Africa if we go back far enough”
I’m not trying to be snarky, but the latest anthropological studies regarding the origin of humans is more complex than that. Yes, we used to think humans all came from Africa.
We now know that non-African people have 1-4% of Neanderthal DNA in them. But there are also some interesting side stories, like Denisovans who lived in Siberia and other places. Early humans left Africa and interbred with Neanderthals and Denisovans in multiple events (I’m talking eras, not shagging). Red hair and blue eyes came from Neanderthals. Many present-day Australasians have Denisovan DNA. The science is still evolving, but many stories can be found by searching for keywords like Neanderthal, Denisovan, DNA, and so on.
http://www.nhm.ac.uk/about-us/news/2012/august/denisovan-dna-suggests-a-dark-complexion-and-interbreeding113697.html
Paul, I think it was one Adam and 3 Eves, and it’s unlikely that Adam knew any of the Eves. The number of centuries back for the eldest is still undecided but it’s definitely hundreds of thousands of years
The Bible story of one Adam and one Eve suggests a good reason for the state of humanity – incest.
bettykath – had not Eve eaten of the tree of knowledge of good and evil, there would not have been offspring.
Threesome!
Some would say we’re all from the ocean if you go back real far. The Washington Primordial Slime.
Nick – in one of those ‘scientific’ DNA studies they do, they decided that there actual was either one Adam and three Eves, or three Adams and one Eve. Cannot remember which was which.
Labeling is such a bxtch.
Using skin color can be offensive and often inaccurate. There are sometimes reasons for using skin color in descriptions but black, brown, white, red, yellow just don’t do the job, mainly because they suggest other, mostly negative, stereotypical attributes.
How about using a standardized color wheel, e.g. light peach, medium peach, dark peach, light tan, medium tan, dark tan, light ochre, dark ochre, blue black, red black…… It would take some work to come up with a good color wheel for skin tone, especially since there are so many of marriages of people of different skin tones producing children who have their own unique tone. Guess it would take a new federal agency to track and review for changes.
Using the geographic residence of ancestors can get tricky especially when the various ancestral lines come from different places. Remember Tiger Wood’s juvenile description of his ancestral background? And how many generations back do you go for the ancestral residence? As J. Brian Harris has pointed out, we’re probably all from Africa if we go back far enough.
Paul, I spent a night in Yuma. RV parks w/ Midwesterners. It was January. Yuma is the last city I hit on my annual sojourn to San Diego in January. I never plan on stopping. I did drive to that small border town in Mexico. The US Border people were like gestapo. My car was loaded up for our months in San Diego. They went through everything. One guy was sorta apologetic, the rest were pricks.
jim, I can think of a more scandalous connotation for “Bushmen.” In my research of unique and offensive mascots there are Cavemen. I got a lot more.