The debate over team names and mascots derived from Native Americans has been going on for decades, and it’s not about to stop. Since the 1970s, many high schools and colleges have dropped names such as Indians, Braves and Redskins because many Native Americans find them insulting. The University of Illinois has retained Fighting Illini but dropped Chief Illiniwek.
Several professional franchises, however, still use names such as these. Whether all or some of them will eventually be retired is an open question that can be resolved through discussion and debate to reach a broad public consensus. That’s life in a free and democratic society.
The U.S. Patent and Trademark Office, however, thinks it is the federal government’s job to pre-empt the debate when it comes to certain names it considers offensive. It canceled trademark protection for the Washington Redskins’ team name. Losing this protection doesn’t keep the franchise from using the name - but it does make it harder to prevent unauthorized uses of it, potentially depriving the owners of revenue.
The agency made its decision on the argument that many Native Americans regard the term “Redskins” as disparaging. It is, of course, and team owner Daniel Snyder should have recognized that and found a new team name years ago. But that doesn’t mean the government has any business penalizing him for keeping it.
That’s the argument the team has made in court, and in late December it got a sort of affirmation when a federal appeals court found that the Patent and Trademark Office overstepped when it refused to register a trademark for an Asian-American rock band called the Slants. The agency said the name would offend those of Asian ancestry. But the court said the First Amendment was meant to protect free expression even when it insults.
“Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others,” the court said. “It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys.” Depriving the Slants of trademark protection for their name deprives them of the right to choose their own messages.
The agency argued that there is no First Amendment violation because the band is still allowed to use the name. The court had little patience with this line of reasoning. “Federal trademark registration brings with it valuable substantive and procedural rights unavailable in the absence of registration.” Losing them because of government disapproval of a name “has a chilling effect on speech.”
The case of the Slants illustrates the folly of letting censors rule. The band members chose the name to subvert prejudice against Asian-Americans, not encourage it. But literal-mindedness is a hallmark of the bureaucratic approach.
The Redskins, of course, don’t mean their name ironically. But the right way to address the owner’s obstinacy is by persuasion and social pressure - not by government dictate.