SCOTUS versus The Slants and the Redskins

When the Supreme Court decided to turn away the trademark case against the Washington Redskins yesterday it certainly sounded like bad news for the venerable NFL franchise. (And to be clear, it obviously wasn’t good news.) The decision means that at least for the moment a previous ruling which had gone against them would be left to stand, effectively cancelling their trademark rights over the “offensive” team name. But a deeper reading indicates that this was more of procedural move and the real decision is yet to come.

The Supreme Court on Monday rejected a long-shot appeal from the Washington Redskins challenging a law that bars offensive trademarks, although the justices could still resolve the same issue in another pending case.

The court turned away the team’s unusual request to have its case heard before a federal appeals court in Richmond, Virginia, weighs in. The Redskins are appealing the government’s decision to cancel its trademarks over concerns the nickname disparages Native Americans.

Redskins spokesman Tony Wyllie said the team would not comment.

There are two complicating factors here which we’ll want to keep an eye on. The first is the fact that the request from the team was outside the normal appeals process to begin with. The case is still pending in Richmond and it would be at least somewhat unusual for the Supremes to step on their toes before they had a chance to render a verdict.

More interesting is the case that SCOTUS will hear in the suit involving The Slants, a group billed as, “the first all-Asian American dance rock band in the world.” You can check out their, er… hit “Sour Love” here if you like. (I made it through about 45 seconds of it.)

The group’s case revolves around the fact that they were denied a copyright for their work based on the fact that the name of the band has been deemed offensive to Asians. This was done despite the fact that all of the musicians involved are themselves of Asian descent and they claim to be “taking back the word” from racists.

I suppose there’s a parallel between the two cases, but the fact either of them are being considered leads us to the question of who is supposed to be the judge of what’s “too offensive” to be allowed in the corporate arena. In the world of music, pretty much everything should fall under the protection of free speech because nobody is forcing anyone to listen to the band’s songs. Their name may be offensive to some, but let’s face it… The Dead Kennedys have a fairly offensive name but nobody got very far in trying to ban them that I’m aware of. And do we really need to bring up N.W.A in this context? Heck, there was just a very popular movie released about them. If those names aren’t too offensive to receive a copyright, how are the courts to justify shooting down The Slants?

With that in mind, you can see how the owners of the Redskins would want to have the two cases lumped in together. Football isn’t generally considered as much of an “artistic expression” as music, but it’s still entertainment. If the government can get away with punishing them over their name rather than allowing the court of public opinion and the free market to make that decision, the door is open to all sorts of mischief. If people really want the Redskins to change their name, have people stop buying tickets and merchandise to the point where their network and advertising revenue suffers. I’d wager that the name would be gone by next year if that were the case.

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