On Monday the court ruled the government is not allowed to refuse registering potentially offensive names. This week, the high court finally settled the (many) years old question as to whether the federal ban on offensive trademarks violates the First Amendment, holding that it does.
"(The idea that the government may restrict) speech expressing ideas that offend ... strikes at the heart of the First Amendment", wrote Justice Alito in his opinion. The team filed a legal challenge to a 2014 decision by U.S. Patent and Trademark Office tribunal canceling its trademarks as disparaging to Native Americans.
In a passage that should be pasted into the student handbook of every college and read aloud by progressives who have convinced themselves that hate speech is not free speech, the court held, "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate'". If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.
Unlike other areas the court has recognized as government speech, trademarks are not "closely identified in the public mind" with the government.
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Lawrence Nodine, an intellectual property litigator who was one of three who wrote an amicus brief for the International Trademark Association in the band's case, said the decision was the right outcome. "But in my view it was just not possible to defend the statute". The plurality concluded that the disparagement clause is unconstitutional because, even if trademarks are considered to be commercial speech subject to the relaxed scrutiny of Central Hudson, the disparagement clause can not satisfy that standard, as the prohibition is not narrowly drawn to the interests it purports to advance.
"I would expect the Redskins' counsel to file sometime this week, if not today". "I think that their name is forever deemed offensive". The case involves a very small corner of federal law, but implicates the broader logic of political correctness, which is that speech should be silenced for the greater good if there is a chance that someone, somewhere might be offended by it. However, the group was encouraged that the high court's opinion did not address the team's name. But the disparagement clause was the wedge that activists were trying to use to force the Washington Redskins to change the National Football League team's name (the team has been fighting the cancellation of its trademark in court).
Schiller, the intellectual property attorney at Boies Schiller Flexner in NY, is a lifelong fan of the team. "Now the Supreme Court says you can register offensive names". He said the 4th Circuit could rule on whether the team name was derogatory to a substantial composite of Native Americans when the registrations were granted beginning in the 1960s - the team argues they were not - but is more likely simply to overturn the lower court decision based on this Supreme Court ruling and leave it at that.
"If Daniel Snyder wants to get any public dollars for a new stadium, the likelihood of him being able to accomplish that in this environment is really slim until or unless he changes the name of the team", Carter said.