The First Amendment Gets an Eyebrow-Raising Defender in the Washington Redskins Controversy

The First Amendment Gets an Eyebrow-Raising Defender in the Washington Redskins Controversy

By Frank Camp (18 hours ago) 

The Verge reported that last June, the U.S. Patent and Trademark Office revoked six Washington Redskins trademarks, deeming them “disparaging.”
The USPTO issued a statement, which reads in part:

“These registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered…The record establishes that, at a minimum, approximately thirty percent of Native Americans found the term ‘redskins’ used in connection with respondent’s services to be disparaging…”

Now, the ACLU is filing a lawsuit against the USPTO. In a piece for ACLU.org, Esha Bhandari wrote:

“We don’t disagree with that judgment, but the government should not be able to decide what types of speech are forbidden – even when the speech in question reflects viewpoints we all agree are repellent.”

“Our brief is on behalf of the First Amendment, not the Redskins.”

However, according to the Cornel University Law School’s Legal Information Institute, the Lanham Act gives the government the power to revoke any trademark if it:

“consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute…”

But exactly who in the government defines “immoral, deceptive, or scandalous matter?”
ESPN reports that a Langer poll conducted last year found that a large majority of Americans don’t believe the Redskins name is offensive, nor do they think it should be changed:

“71 percent favor keeping the nickname — but that’s down from 89 percent when the question was first asked 22 years ago. It also found that 68 percent of people responding think the nickname is not disrespectful of Native Americans, compared to just 9 percent who say it is ‘a lot’ disrespectful.”

According to the most recent poll (which was conducted in 2004), 90% of Native Americans did not find the Redskins name offensive, while 9% did, though some have questioned the methodology used in the poll.
CBS DC quotes Eunice Davidson, of the Sioux tribe, who is not offended by the name:

“It more or less shows that they approve of our history…I would say I stand with him. We don’t want our history to be forgotten.”

Additionally, CBS DC reports:

“North Dakota was the scene of a similar controversy over the state university’s Fighting Sioux nickname. It was decisively scrapped in a 2012 statewide vote — after the Spirit Lake reservation voted in 2010 to keep it.”

Despite the Native population voting to keep the name, the state voted to scrap it.
The ACLU’s argument is not about whether or not you believe “Redskins” is offensive, it’s about whether or not you believe the federal government has the right to make that decision.
The ACLU, even though it’s in agreement regarding the allegedly offensive nature of the name, is willing to fight for the First Amendment.