The Washington Redskins are back in the spotlight again. This past June, the US Patent and Trademark office canceled six trademarks belonging to the NFL team, claiming the name and mascot were "disparaging to Native Americans." Now, the ACLU has appealed the decision on the grounds that the cancellation violates the First Amendment.
In a blog post published today on the ACLU's website titled You're Not Wrong, You're Just An A**hole, ACLU staff attorney Esha Bhandari argues that although the Redskins' name is offensive, the government doesn't have the authority to make the team change it. Bhandari argues that "arbitrary decisions" like this make it possible for the government to police anything it finds to be "scandalous."
Bhandari also notes that under the Lanham Act — a trademark law the ACLU calls "problematic" — the government technically does have the power to make decisions regarding which trademarks deserve protection. In ACLU's amicus brief, the organization argues that finding a specific section of the Lanham Act unconstitutional would not "significantly alter the landscape of trademark law." Below is an excerpt from the amicus brief, filed yesterday:
It is indisputable that registration of a mark provides substantial benefits to a trademark holder; it is also true that many trademarks involve expressive speech and association. Therefore, by authorizing the government to deny registration of certain marks because of a viewpoint-based determination about the character of expressive speech, Section 2(a) [which prohibits the trademark] violates the First Amendment.