The government should not be in the business of deciding what is moral, immoral, or offensive. This section of the trademark act is a leftover from Victorian times, and is used now primarily to promote social agendas with coercive censorship.
To justify such censorship, the government must demonstrate that the harms it seeks to address are real and that its restriction will in fact alleviate them to a material degree. In addition, the courts have found, such a restriction “may not be sustained if it provides only ineffective or remote support for the government’s purpose.” These mandates are “critical,” for otherwise “[the government] could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression.”
In this case, what is the governmental purpose in depriving the Redskins of their trademark registration? Is it that the government is serving as a morality teacher? Is it choosing a favored position, and then enforcing it by only giving government benefits to companies that agree with that orthodoxy?
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