The Washington Redskins has no more roadbocks left in its fight to trademark its name. After a quarter of a century battling for the rights, a recent Supreme Court decision finally opened the door enough for the team to squeeze through.
Efforts by team owner Daniel Snyder to register “Redskins” have been loud and controversial. Even former President Obama chimed in, opining that the name represents an old stereotype that needs to be changed. Many individuals and groups have fought tooth and nail to cancel the registration, viewing the name as offensive to American Indians. Since the 1970s, American Indian activists and leaders have urged the team to change its name. But when attempts to persuade the football organization failed, Suzan Shown Harjo, along with other activists, decided to petition the Patent and Trademark Office to revoke the team’s trademark registration.
These efforts paid off and the three-judge panel ordered the revocation of seven Redskins trademarks. The board ruled that the name and logo were disparaging to American Indians. The ruling takes root in the Lanham Act that allows the refusal of a trademark if it is immoral or scandalous or brings persons, institutions or beliefs into “contempt or disrepute.”
The ruling cited the plaintiff’s survey that reported that 46 percent of the public thought “redskin” was offensive to them. But the team disagreed and in a later proceeding it would present a 2004 poll that found 9 in 10 American Indians did not find “redskin” to be offensive. The team believed the term was not a slur and instead honored and respected Indians and their heritage.
The NFL team would face an additional setback when another petition for cancellation was filed in 2006. This time a young group of plaintiffs led by 24-year-old Amanda Blackhorse, a Navajo, joined the fight. Harjo, frustrated by a court ruling that stated she waited too long to act, recruited the young group of new plaintiffs to counteract that mindset.
It turned out that enlisting the young activists to file their own petition would be critical. In 2009, a federal appeals court dismissed Harjo’s case on a technicality. That left only Blackhorse to continue the fight. But Blackhorse would not face an idle opponent.
In an USA Today interview in 2013, Snyder insisted that he would never – emphasis on never – change the team’s name. But just a year after the interview, Snyder received some bad news. The USPTO sided with Blackhorse.
The team argued the Lanham Act was unconstitutional because its disparagement clause violated the First Amendment. It contended that its mark should not be refused without just compensation. But the U.S. District court disagreed and affirmed the board’s decision in a countersuit filed by the D.C. team. Judge Gerald Bruce Lee ruled that the Lanham Act did not violate the First Amendment. Judge Lee further wondered why the team chose a name that the dictionary defined as contemptuous as far back as 1898. Yet again, the marks were ordered to be canceled.
A Rock Band Holds the Key
Alas, this saga had one more twist in store. Snyder and his football team found an unlikely ally in a synth rock band from Oregon. The Asian-American band The Slants had been fighting its own battle with the USPTO since 2011. The band’s application to trademark its name was denied because officials thought it could be disparaging to other Asian-Americans.
Simon Tam, the band’s founder, sees this concern – while legitimate – to be misguided. He said the band’s name is primarily derived from his desire to share his personal experiences as an Asian-American and to confront the racism and stereotypes that follow. Tam finds the name empowering and views it as a “social justice achieved through linguistic change.” He also says that Asian-Americans are not really offended and he has never received any complaints.
Fortunately for the Washington Redskins in June 2017, The Slants made it to the United States Supreme Court, the highest court in the land. The Court found that Section 2(a) of the Lanham Act did in fact violate the First Amendment and was therefore unconstitutional. The government can only restrict free speech if it passes the strict scrutiny test. The strict scrutiny test requires a compelling government interest and that the law be narrowly tailored to achieve that interest. The Court concluded that the Lanham Act was not narrowly tailored because it prevented the constructive use of racial slurs. The Court added that limiting offensive speech “str[uck] at the heart of the First Amendment.”
The Redskins attorney Lisa Blatt announced that the team was thrilled with the Supreme Court’s decision. Blatt said the decision vindicated her client’s position. On the other side of the aisle, the mood was very different. Blackhorse was disappointed by the Court’s decision and does not feel optimistic about her case’s future. She expressed her bewilderment of Snyder’s “thrilled” attitude.
Disheartened, Blackhorse, now 35, concluded: “Now the Supreme Court says you can register offensive names. The question for the team is: Why would you want to?”