Redskins win: "Disparaging" trademarks are protected by the First Amendment, says SCOTUS

Redskins win: "Disparaging" trademarks are protected by the First Amendment, says SCOTUS

An important ruling, not because it touches on the interminable debate over whether “Redskins” is offensive but because both sides of the Court used their opinions here to remind the public that “offensive” speech is fully protected. Here’s Alito, writing for himself, Roberts, Thomas, and Breyer: “We have said time and again that ‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.'”

The government’s argument was that trademarks aren’t private speech, they’re “government speech” because registration of the mark represents a granting of intellectual property rights by the United States. The First Amendment doesn’t apply to “government speech,” in which case the feds should be free to grant or deny trademarks based on offensiveness or “disparagement” as they see fit. Alito counters: Does that mean the government could refuse to recognize an author’s copyright to his book if it found his views offensive? Game, set, match.

Kennedy, writing for himself, Ginsburg, Sotomayor, and Kagan, reiterated Alito’s point about viewpoint discrimination:

The government wants a “heckler’s veto” over “offensive” trademarks, but that’s not the way the law works. It’s especially encouraging that the three hardcore liberals on the Court signed on to that perspective.

The Redskins, by the way, weren’t a party to this case but they’re the big winners nonetheless. The Patent and Trademark Office canceled their trademark three years ago (after having approved it repeatedly for decades) on grounds that it was “disparaging” to Native Americans. The team appealed; their case is currently stuck in the Fourth Circuit. The victorious petitioners here were the band “The Slants,” a group of Asian-Americans that chose a derogatory term for themselves in order to subvert the stigma of the word. In hindsight, that may have worked to the Redskins’ advantage: The Slants are a more sympathetic petitioner in that they’re average joes, not a well-heeled sports team, and the “disparagement” argument seems especially ridiculous in their case. No one adopts a slur for a racial group to which they belong for the purpose of “disparaging” themselves, after all. They do it to undermine the disparaging connotation. The Redskins didn’t adopt their name for disparaging reasons either — teams don’t name themselves after things they disdain — but the fact remains that the organization is an example of non-Native people using a mascot which some Native Americans find offensive. I wonder if SCOTUS agreed to hear The Slants’ case partly because this was more favorable political ground for them to decide the issue than it would have been with the Redskins as the petitioner. Now, when the ‘Skins come before the Fourth Circuit, it’s a simple matter of applying precedent. I doubt the feds will even challenge the ruling if the Fourth Circuit rules for the team.

Gorsuch didn’t participate in the case, by the way, because he wasn’t on the bench yet when oral arguments were heard. Exit quotation from Redskins owner Dan Snyder: “I am THRILLED! Hail to the Redskins.”

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