First Amend­ment rul­ing helps Red­skins with trade­mark case

Law pro­tects of­fen­sive ideas, 8 jus­tices say

The Washington Times Daily - - FRONT PAGE - BY ALEX SWOYER

The gov­ern­ment can­not cen­sor trade­marks be­cause some peo­ple find them of­fen­sive, the Supreme Court ruled Mon­day in a ma­jor de­ci­sion that could clear the way for the Wash­ing­ton Red­skins foot­ball team to main­tain its trade­marks.

In an 8-0 rul­ing, the jus­tices said the U.S. Pa­tent and Trade­mark Of­fice over­stepped its pow­ers and vi­o­lated the First Amend­ment rights of an Asian-Amer­i­can rock band when it de­nied them a trade­mark on their name, The Slants.

The agency said the name was an of­fen­sive anti-Asian slur that vi­o­lated a clause in fed­eral law pro­hibit­ing dis­parag­ing trade­marks. But the court said it’s the law, not the band, that must change.

“Speech may not be banned on the ground that it ex­presses ideas that of­fend,” Jus­tice Sa­muel A. Al­ito Jr. said in his opin­ion for the court.

An­a­lysts said the rul­ing could clear the way for other con­tro­ver­sial trade­marks, in­clud­ing the Red­skins.

The trade­mark of­fice, at the urg­ing of some Amer­i­can In­dian groups, said the team’s trade­marked name was an of­fen­sive and out­dated slur. Their le­gal bat­tle is pend­ing in the 4th U.S. Cir­cuit Court of Ap­peals. The case was put on hold to await the Supreme Court’s de­ci­sion in the band’s case.

“I am thrilled! Hail to the Red­skins,” team owner Dan Sny­der said af­ter the de­ci­sion.

Some Amer­i­can In­dian groups, how­ever, saw a dif­fer­ence be­tween The Slants and the Red­skins. They said no mat­ter what the courts rule, the Na­tional Foot­ball League should step in and re­ject the team name.

“Wash­ing­ton’s foot­ball team pro­motes, mar­kets and prof­its from the use of a word that is not merely of­fen­sive — it is a dic­tio­nary-de­fined racial slur de­signed from the be­gin­ning to pro­mote ha­tred and big­otry against Na­tive Amer­i­cans,” said a joint state­ment by Jackie Pata, ex­ec­u­tive di­rec­tor at the Na­tional Congress of Amer­i­can In­di­ans, and Ray Halbrit­ter, a rep­re­sen­ta­tive for the Oneida Na­tion. “If the NFL wants to live up to its state­ments about plac­ing im­por­tance on equal­ity, then it shouldn’t hide be­hind these rul­ings, but should act to … end this hate­ful and de­grad­ing slur.”

But an over­whelm­ing ma­jor­ity of Amer­i­can In­di­ans do not con­sider “Red­skins” a deroga­tory term. A poll con­ducted last year by The Wash­ing­ton Post found that 9 in 10 Amer­i­can In­di­ans say they were not of­fended by the Wash­ing­ton Red­skins name.

In court, Amer­i­can In­dian groups ar­gued that the Pa­tent and Trade­mark Of­fice had a duty to en­cour­age racial tol­er­ance and pro­tect mi­nori­ties from de­mean­ing mes­sages in com­mer­cial ad­ver­tis­ing.

But Jus­tice Al­ito said the line be­tween com­mer­cial and non­com­mer­cial speech is tough to spot, and the First Amend­ment has long pro­tected Amer­i­cans’ rights to be of­fen­sive.

“Speech that de­means on the ba­sis of race, eth­nic­ity, gen­der, re­li­gion, age, dis­abil­ity, or any other sim­i­lar ground is hate­ful; but the proud­est boast of our free speech ju­rispru­dence is that we pro­tect the free­dom to ex­press ‘the thought that we hate,’” wrote Jus­tice Al­ito.

In an­other First Amend­ment rul­ing Mon­day, the court over­turned a state law that banned reg­is­tered sex of­fend­ers from ac­cess­ing so­cial me­dia. The jus­tices said the in­ter­net has be­come the lo­cus for job searches and con­tact­ing pub­lic of­fi­cials, and ban­ning any­one from ac­cess­ing so­cial me­dia is an un­con­sti­tu­tional in­fringe­ment.

That rul­ing, too, was 8-0.

In the trade­mark case, the gov­ern­ment ar­gued that since a fed­eral agency ruled on trade­marks, they amounted to a form of gov­ern­ment speech. At­tor­neys said that meant the gov­ern­ment had the right to pro­hibit trade­marks deemed of­fen­sive.

Jus­tice Al­ito, how­ever, said trade­marks are pri­vate speech.

“Hold­ing that the reg­is­tra­tion of a trade­mark con­verts the mark into gov­ern­ment speech would con­sti­tute a huge and dan­ger­ous ex­ten­sion of the gov­ern­ment-speech doc­trine, for other sys­tems of gov­ern­ment reg­is­tra­tion (such as copy­right) could eas­ily be char­ac­ter­ized in the same way,” Jus­tice Al­ito wrote.

An­a­lysts said the rul­ing lays down a ma­jor marker for free speech.

“All the jus­tices agree that the gov­ern­ment can’t ban speech be­cause it may of­fend cer­tain peo­ple,” said Josh Black­man, a pro­fes­sor at South Texas Col­lege of Law Hous­ton. “In to­day’s day and age, that’s a fairly sig­nif­i­cant opin­ion that there’s agree­ment on this.”

Simon Tam, lead singer of The Slants, sug­gested there was a way to up­hold his trade­mark while not de­cid­ing on broader is­sues that af­fect the foot­ball team’s name.

But the court said ma­jor First Amend­ment is­sues were at stake and chose to rule broadly, strik­ing down the “dis­par­age­ment clause” in trade­mark law. Mr. Black­man said it’s likely the case clears the path for the Red­skins but pointed out a dif­fer­ence be­tween the cases. Mr. Tam said he was try­ing to re­claim the slur “slants” as a sym­bol of racial jus­tice on be­half of Asian-Amer­i­cans.

The Red­skins haven’t made that ar­gu­ment about their team name.

“So there might be some grounds of dis­tinc­tion there,” said Mr. Black­man.

Trade­mark law is full of con­fus­ing cases. The tele­vi­sion show “Queer Eye for the Straight Guy” was reg­is­tered by the trade­mark of­fice, but “Clearly Queer” was re­jected. “Per­ma­chink” was ac­cepted, but “chink proud” was re­jected.

Luke DeMarte, a part­ner at Michael Best, said the rul­ing Mon­day clears up much of that con­fu­sion.

“This de­ci­sion will free the USPTO from its im­pos­si­ble bur­den and bring some con­sis­tency to the ex­am­i­na­tion process,” said Mr. DeMarte.

Chris­tine Far­ley, a law pro­fes­sor at Amer­i­can Univer­sity, said the part of the law the Supreme Court struck down Mon­day also ap­plied to “im­moral” or “scan­dalous” trade­marks. She ar­gued that the rul­ing leaves am­bi­gu­ity on those counts, and she said Congress could step in and leg­is­late to stop their reg­is­tra­tion.

“More likely than not, the trade­mark of­fice will prob­a­bly not refuse any reg­is­tra­tion as be­ing scan­dalous or im­moral, and we will prob­a­bly wait for Congress to rewrite this pro­vi­sion,” she said.

The rul­ing will also af­fect dis­par­age­ment clauses in state trade­mark laws across the coun­try, said J. Michael Keyes, an in­tel­lec­tual prop­erty lawyer and part­ner at Dorsey & Whit­ney, who pointed to a state law in Wash­ing­ton that mir­rors the fed­eral law.

“That pro­vi­sion in our state statute is un­con­sti­tu­tional in light of the court’s de­ci­sion,” he said.


Wash­ing­ton Red­skins owner Dan Sny­der said he was thrilled with the Supreme Court rul­ing strik­ing down part of a law that bans of­fen­sive trade­marks.

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