Supreme Court Could Weigh In on Redskins Trademark Case

http://www.nytimes.com/2016/05/03/us/politics/supreme-court-redskins-trademark-case.html

Version 0 of 1.

WASHINGTON — There is a federal law that allows the government to discriminate against messages that may disparage people, even the dead, as well as “institutions, beliefs or national symbols.”

Such a law would not be out of place in Thailand, where it is a crime to mock the king, or in Turkey, where you can go to jail for insulting “Turkishness.”

Here in the United States, the Patent and Trademark Office uses a federal law, the Lanham Act, to test the distinctively American commitment to free expression by making distinctions between acceptable trademarks and disparaging ones.

Its decisions often seem to have no rhyme or reason. It has registered vulgar sexual references, and has taken a flexible approach to ethnic slurs. While it has rejected trademarks for “Heeb,” “Dago,” “Injun” and “Squaw,” saying they were disparaging, in other cases it has registered trademarks for the exact same terms.

In 2009, at the second argument in the Citizens United case on campaign finance, an outraged Chief Justice John G. Roberts Jr. said that “we don’t put our First Amendment rights in the hands” of government “bureaucrats.”

But apparently we do, at least where trademarks are concerned.

Two recent petitions have asked the Supreme Court to sort out whether the Washington Redskins and an Asian-American dance-rock band called the Slants have names so offensive that they should be denied the protections of federal trademark law.

Last year, in the Slants case, a federal appeals court in Washington found the Lanham Act’s disparagement provision unconstitutional. Writing for the majority in a 9-to-3 decision, Judge Kimberly A. Moore of the United States Court of Appeals for the Federal Circuit said that while some rejected trademarks “convey hurtful speech that harms members of oft-stigmatized communities,” the First Amendment “protects even hurtful speech.”

That is consistent with recent Supreme Court decisions, which have been quite protective of offensive speech, including hateful protests at military funerals, depictions of animal cruelty and lies about military honors.

More generally, the Supreme Court said in June in Reed v. Town of Gilbert that laws “that target speech based on its communicative content” were “presumptively unconstitutional.”

The government, however, says that the trademark law does not bar any speech — the Slants are free to continue to use their name. What the law does, the Justice Department said in urging the Supreme Court to hear the case, is merely offer “federal benefits on terms that encourage private activity” in line with legislative policy.

There is some recent support for saying that the First Amendment falls out of the analysis when the government is not acting as a censor, but is merely choosing what speech to adopt or support. In June, in a 5-to-4 decision in Walker v. Sons of Confederate Veterans, the Supreme Court ruled that Texas could refuse to allow specialty license plates bearing the Confederate battle flag because the plates were the government’s speech and were thus immune from attacks on First Amendment grounds.

But the government, in its Supreme Court brief in the Slants case, Lee v. Tam, No. 15-1293, did not seem ready to adopt millions of trademarks as its own speech. Rather, it said it could confer its benefits based on whether it approved of the speaker’s message.

The problem with that argument, according to a brief supporting the Redskins from leading First Amendment lawyers, including Floyd Abrams and Rodney A. Smolla, is that “the government is not free to attach unconstitutional conditions, such as the surrender of First Amendment rights, to the receipt of government benefits.”

The Slants, as it happens, say they do not intend to disparage anyone. They say they seek to adopt and reform a disparaging term about Asians, much as some gay people have embraced the term “queer.”

The Redskins, too, say they mean no offense. For a long time, the trademark office agreed, registering Redskins trademarks in 1967, 1974, 1978 and 1990. In 2014, though, it reversed course and canceled six registrations, saying they disparaged Native Americans.

The team lost before a trial judge in Virginia and has appealed to the United States Court of Appeals for the Fourth Circuit, also in Virginia.

Last week, though, the team filed an unusual petition in the Supreme Court. If the justices agree to hear the Slants case, the petition said, they should hear the Redskins case, too, even though the Fourth Circuit has not yet ruled.

Such a move — lawyers call it “certiorari before judgment” — is rare. But the Supreme Court occasionally allows it, as it did in major sentencing and affirmative action cases, when hearing two appeals at once would allow it to consider a range of legal issues.

Native American groups have marshaled substantial evidence that “redskins” is widely understood to be a deeply wounding slur. They add, probably correctly, that a ruling for the team would allow federal trademark protection for the most vile racist terms.

In most of the world, where laws against hate speech are commonplace, the trademark cases would be easy ones. Should the Supreme Court decide to weigh in, it would again have to assess how robust the American commitment to free speech is.