Free Speech Defeat: Insisting Government Is Exempt from First Amendment Scrutiny, Federal Court Cancels Redskins’ Trademark as Offensive

In a ruling that comes on the heels of the U.S. Supreme Court’s recent declaration that the government can discriminate against expression that takes place within a government forum (e.g., government-issued Confederate license plates), a federal court has ordered the cancellation of the NFL Redskins’ federal trademark registrations on the grounds that its name is offensive to Native Americans. Reasoning that the government is exempt from First Amendment scrutiny, U.S. District Judge Gerald Bruce Lee affirmed that the U.S. Patent and Trademark Office (PTO) doesn’t have to hand out registrations to entities whose names it finds offensive, equating a trademark registration with a form of government-sanctioned speech.

In a related matter, attorneys for The Rutherford Institute are in the process of challenging a federal statute that allows the government to reject trademark applications for names that might be offensive to certain persons or groups. In filing an amicus brief in In re: Simon Shiao Tam, Rutherford Institute attorneys have come to the defense of “The Slants,” an Asian-American dance rock band whose trademark application was denied by the PTO on the grounds that the trademark might disparage or offend persons of Asian heritage.

“Whether the debate is over a trademark for the Slants or the Redskins, or a specialty license plate for the Sons of Confederate Veterans, the sticking point remains the same: how much do we really value the First Amendment, and how far are we willing to go to protect someone else’s freedom of speech, even if that speech might be offensive to some?” asked constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “The end result remains the same: outright censorship and the creation of a class system that renders speech perceived as politically incorrect, hateful or offensive as inferior and less entitled to the full protection of the law.”

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The Redskins’ have been waging a 20-year battle to protect the football team’s name in the face of charges that it is offensive to Native Americans. In 2014, the Trademark Trial and Appeal Board voted to cancel the Redskins’ trademark, declaring it to be offensive to Native Americans and therefore in violation of the Lanham Act, which prohibits names that “may disparage” or bring people into contempt or disrepute. In asserting the team’s First Amendment right to retain its name, the Redskins argued that the team name is a valuable commodity, in which the NFL team has invested millions of dollars for promotions and protections of trademarks. Moreover, the team claims that the Redskins name honors Native Americans rather than disrespecting them.

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In light of the court’s ruling in the Redskins case, the outcome of In re: Simon Shiao Tam remains uncertain. Simon Shiao Tam, the front man for an Asian-American dance rock band called “The Slants,” had his trademark application “The Slants” denied under a provision of the federal statutes which allows the PTO to refuse to register a trademark that “[c]onsists 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.”

In challenging the Tam ruling before the Court of Appeals, The Rutherford Institute argued that the statute is unconstitutional on its face because it discriminates against speech that a government official or body considers inappropriate or offensive. Affiliate attorneys Megan L. Brown, Joshua Turner, Christopher Kelly, Jennifer Elgin, and Dwayne D. Sam of Wiley Rein LLP in Washington, D.C., assisted The Rutherford Institute and The Cato Institute in advancing the arguments in the Tam brief.


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