The Washington Redskins won big today in a Supreme Court case that had nothing to do with them specifically.
With today’s ruling on Lee v. Tam (known now as Matal v. Tam), the court overturned a provision that is part of the Lanham Act, which that disallowed terms or phrases that “may disparage” persons from receiving federal trademark registration. The justices, who heard arguments on the case in January, agreed unanimously that the act violated the First Amendment’s free speech provision. As such, the Redskins should be allowed to regain their trademark registration for their slur of a name.
The case before the Supreme Court involved a musician, Simon Tam, who was denied trademark registration for the name of his band, The Slants, under the Lanham Act. Tam, who is Asian, has consistently stated that his intention is to reclaim the “slants” slur. The Patent and Trademark Office saw in the Lanham Act the creation of a blanket prohibition against terms known to be slurs in its decision to deny Tam and his band of the trademark they sought.
Tam initiated legal proceedings to challenge the PTO’s ruling, which opened up a discussion about the First Amendment itself as well as the role nuance and interpretation could or should play in the PTO’s enforcement of the Lanham Act.
At the same time as Lee v. Tam climbed up the appellate court system, another case that hinged on the same provision of the Lanham Act and involved the Redskins directly also wound its way through the courts. Pro Football, Inc. v. Blackhorse was the case in which the Washington NFL team challenged a PTO decision that stripped the team of all trademarks to its name after the PTO decreed “redskins” a slur and thus unprotectable under the Lanham Act. Lee v. Tam made it to the Supreme Court first, though, so Washington’s case was docketed.
Still, dealing as it does with the same provision of the Lanham Act as Pro Football, Inc. did, today’s decision is a victory for the Redskins. It essentially kills any formal drive to legally pressure the team into changing its name. Any consideration on the matter is left solely to the discretion of Dan Snyder, who’s made his feelings quite clear on the name.
The court held that attaching a government seal to the trademark registration does not make the underlying trademark itself government speech. The opinion states:
“If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.”
And in more punchy language:
“If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.”
The case seemed pretty straightforward from the outset. Leaving the interpretation of what words or phrases do or do not count as “disparagement” up to a government agency clearly had the potential for disaster, and ran the risk of making free speech protection a matter up to the individual tastes and prejudices of a small and random sampling of PTO officers.
Realistically, the Lanham Act has long been applied inconsistently by the PTO. There was no clear way to avoid that, as the court’s opinion states:
Registration of the offensive marks that Tam cites is likely attributable not to the acceptance of his interpretation of the clause but to other factors—most likely the regrettable attitudes and sensibilities of the time in question.
This same reasoning explains how the Redskins benefitted greatly from the period in which they first attained federal trademark registration. The crux of much of the legal opposition to the name focused on arguing that the term is offensive now, and has been since at least the 1970s. But when the litigation of the word “redskins” is left to a group like the PTO, the resulting decisions will always say more about that body’s own biases than anything else.
The Redskins released a statement on the decision:
And Snyder made his feelings clear:
In a statement on Facebook, Simon Tam wrote:
This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves. During the fight, we found the Trademark Office justifying the denial of rights to people based on their race, religion, sexual orientation, and political views, simply because they disagreed with the message of these groups. To that end, they knowingly used false and misleading information, supported by questionable sources such as UrbanDictionary.com, while placing undue burdens on vulnerable communities and small business owners by forcing them into a lengthy, expensive, and biased appeals process. The Supreme Court has vindicated First Amendment rights not only for our The Slants, but all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination.
The strange paradox of Tam’s victory is that his stride for “all marginalized communities to determine what’s best for ourselves” stands in contradiction to the position of the other big winners in this decision, the Redskins. It’s an aggravating win for a team that most certainly hasn’t engendered any goodwill, but it’s a clear victory for the First Amendment nonetheless.
In short, today Dan Snyder won, and we’re all better for it. For once.