By Daniel Greenfield
One of the abuses of power from the Obama years was the war on the Washington Redskins.
The Washington Redskins’ name is commercial speech and isn’t the kind of free expression protected by the First Amendment, the Obama administration told a federal court this week in defending a ruling that has stripped the football team of trademark protections.
The team’s name itself is not at stake, but if the trademark is canceled, the name becomes less valuable because the owners would struggle to enforce their trademark against anyone who wanted to use the name or Indian logo on their own merchandise.
In a filing Monday, the Justice Department defended the Trademark Trial and Appeal Board’s decision last year to strip the team of protections.
“Not only do trademarks function only minimally as a vehicle for expression, but trademark registration also involves the necessary participation of the government in approving that registration, which confers relaxed First Amendment review even when combined with the speech of a private party,” the Obama lawyers said.
Now the Supreme Court has decisively rejected the Obama argument and ruled for free speech instead.
The high court’s decision, authored by Justice Samuel Alito, holds that a Lanham Act provision against such offensive trademarks is facially invalid under the First Amendment.
“It offends a bedrock First Amendment principle,” writes Alito in the opinion. “Speech may not be banned on the ground that it expresses ideas that offend.”
The free speech victory goes to Simon Tam, the Asian-American frontman for The Slants who attempted to register his rock band’s name. He says he picked his band’s moniker in an effort to reclaim a stereotype. After trademark examiners refused Tam’s application, Tam brought a lawsuit, and in December 2015, he prevailed at the United States Court of Appeals for the Federal Circuit.
The Supreme Court has now affirmed the lower appeals court’s opinion, which is also potentially welcome news for the NFL’s Washington Redskins, whose own marks were canceled for being disparaging to Native Americans.
In a concurring opinion, four of the justices led by Anthony Kennedy write that the ban on disparaging trademarks is “viewpoint discrimination” on the part of the government, but with perhaps an eye to ensuring that other grounds for refusing trademarks — confusion or dilution, for instance — don’t fall by the wayside, they attempt to distinguish the Tam case and even the similar dispute concerning the Washington Redskins. Ultimately, however, the sentiment is similar that the government must be careful about interfering with free speech.
“A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all,” writes Kennedy. “The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”
This is fairly good news. It smashes trademark safe spaces and reaffirms the importance of free speech. And that’s a dying virtue in some spaces of our society.