Whatever you think of the wisdom in keeping the moniker of Washington’s professional football team, it should be uncontroversial that the Redskins name and logo is protected by the First Amendment. Similarly, while I agree with South Carolina’s imminent decision to remove the Confederate battle flag from its capitol, if someone wants to drive a bright orange car with that ensign painted on top, it’s their right.
After all, there are only a few categories of expression that the Supreme Court has held to be constitutionally unprotected: things like child pornography and incitement of violence. “Offensive” speech — however defined and whoever decides — isn’t on that list.
And yet, when federal district judge Gerald Bruce Lee ordered that the Redskins’ trademark registrations be canceled — because they “may disparage” Native Americans — he badly misinterpreted the scope of constitutional speech protections. Judge Lee mistakenly found that the federal government doesn’t have to protect the First amendment under the federal trademark statute and that registering a trademark constitutes government speech.
Reasonable people disagree about how best to structure intellectual property law, but it’s bizarre to think that every trademark, copyright and patent represents government expression.
Judge Lee followed the lead of a flawed Supreme Court ruling ratifying the power of the Department of Motor Vehicles — of all government agencies — to police speech it considers “offensive.” The Washington Redskins are thus the first unintended casualty of Walker v. Texas Division, last month’s “Confederate license-plate case.”
In Walker, a five-justice majority ruled that the specialty plates Texas drivers can choose for their vehicles constitute state speech — and the state can control its own messages, including rejecting a proposed Sons of Confederate Veterans tag. This is so even though the license-plate program allows Texans to make their own designs, which has resulted in hundreds of plates expressing support for myriad nonprofits, businesses, and affinity groups.
By that logic, Texas has long endorsed Dr. Pepper, Re/Max and an assortment of burger joints. Both Longhorns and Aggies must have been dismayed that the Lone Star State had been officially cheering for the Oklahoma Sooners.
The ruling represents a fundamental misunderstanding: Texas doesn’t have to have specialty plates, but if it creates this money-making program, it can’t then censor speech it doesn’t like.
The same thing is at play with the Redskins: Reasonable people disagree about how best to structure intellectual property law, but it’s bizarre to think that every trademark, copyright and patent represents government expression. To hold otherwise is to imagine that I first learned of the Redskins ruling through a government-endorsed “Washington Post” article appearing in my government endorsed “Facebook” feed that I was checking on my government-endorsed “iPhone.”
And assuming trademarks aren’t the government’s own speech, why should the feds get to restrict marks just because someone somewhere might be offended by them? The very reason that the First Amendment offers such broad protections is that one man’s offensive speech is another’s exercise of social commentary or personal expression.
Alas, Walker’s nefarious new doctrine has claimed its first victim — though the Redskins ruling will now be appealed.
In the meantime, the team should keep its name but change its logo to a red bliss potato. Let the G-Men figure that one out.