Redskins Get an Assist from the Supreme Court
By Steve Thomas
The big news in Redskinsland last week was an opinion released by the United States Supreme Court regarding a case called Matal v. Tam. If you’re a regular listener to The Hog Sty, then you’re already somewhat familiar with this case, at least if you’ve been paying attention. What does Tam have to do with the Redskins? Quite alot, actually, and the Supreme Court’s opinion is of great value to the team. Allow me to explain what’s going on, in as simple terms as I can muster.
In 1992, a group of Native American plaintiffs, led by a Native American named Susan Harjo, filed a challenge with the Patent and Trademark Office (PTO) of the trademarks held by the corporate owner of the Washington Redskins on the basis that the trademarks were disparaging to Native Americans. As a result, the Redskins’ trademarks were cancelled by the PTO on the basis of a portion of federal law called the Lanham Act that allows the PTO to cancel or refuse to register marks that are considered disparaging under certain conditions; however, the Redskins appealed to the United States District Court, which is the federal trial court. The case bounced between the trial court and the appellate court a couple of times, but the Redskins ultimately prevailed and kept their trademarks when the United States Court of Appeals held that the Native American plaintiffs were too old and had waited too long to complain – in other words, they had not brought their claims in a timely manner. The case decided for good in 2009 when the U.S. Supreme Court declined to hear the case. Critically, this case was ultimately decided as a result of procedural rules due to the age of the plaintiffs, not on the merits of the Harjo’s claims that the Redskins marks were disparaging.
A second case was filed with the PTO in 2006 by a new group of plaintiffs, led by Native American Amanda Blackhorse, who did not have the age problem that affected the original Harjo case. The Native American plaintiffs once again prevailed in the PTO when the Redskins’ trademarks were cancelled for the second time under the authority of the Lanham act on the basis that the marks were disparaging. The Redskins appealed to the U.S. District Court, but lost in 2014 when that Court agreed with the PTO’s holding. The Redskins then appealed to the Court of Appeals, which is where the case remains to this day.
The developments last week concerned another federal case, Matal v. Tam, which was brought by the lead singer of a band named “The Slants” comprised of men of Asian-American decent. The band’s name was intended to claim the racial slur “slants” back for those of Asian decent. Mr. Tam attempted to trademark the band’s name, but the PTO rejected his application under the authority of the Lanham Act on the grounds that the name was disparaging. Tam appealed the case to the Federal Court of Appeals, and then again to the Supreme Court. Seeing that the Tam case was challenging the very same issue at that brought against the Redskins, the team asked the Supreme Court to hear both their case and the Tam case at the same time prior to resolution of the Redskins’ appellate case, a move which was unusual but not without precedent. The Supreme Court declined the Redskins’ request but did agree to hear the Tam case.
The Supreme Court released its opinion in Tam last week, holding by a vote of 8-0 that the portion of the Lanham act that allowed the PTO to reject trademark applications or revoke trademarks on the basis of those trademarks being disparaging was unconstitutional under the freedom of speech protections of First Amendment to the Constitution. According to the Court, a trademark is “private speech”, not “government speech”, and therefore the federal government may not prohibit parties from registering a trademark simply because some may find that mark offensive. To do so goes against the very heart of the Constitution’s protections of one’s freedom of expression. Therefore, The Slants will get their trademark, and that portion of the Lanham Act is now unconstitutional.
So what does this mean to the Redskins?
First and foremost, the Redskins will almost assuredly win their appeal of their own trademark case in the Court of Appeals. It may take a while longer, because the Redskins appellate attorneys will want to amend their pleadings to cite the Tam case as binding Supreme Court precedent. At some point, most likely in the next several months, the Court of Appeals should issue an opinion that overturns the District Court’s revocation of the Redskins’ trademarks. The government will probably not appeal the decision (because now that the Supreme Court has opined on the Lanham Act, there really is no point, and the government is prohibited from raising new evidence or arguments in the Court of Appeals that was not presented to the trial court), and the Redskins trademarks will be protected. I do not anticipate another legal challenge to the trademarks absent some change of federal law by Congress.
Yes, the Redskins’ legal battle will most likely be over, permanently, fairly soon, but it cannot and will not end the public debate. The legal battle and the opinions of those who find the name offensive are completely separate issues. In fact, with the legal battle essentially over, I expect the vocal minority who oppose the name “Redskins” to re-focus their energies and raise even more protests, particularly if the Redskins enjoy more success on the field this year. The bottom line, though, is that the realistic legal obstacles to the Redskins will be over soon, and from this point on, whether the Redskins change their nickname will solely be in the purview of Dan Snyder. His primary concern, in addition to his lifelong love of the franchise, will be whether (1) the team can continue to be effectively marketed using the name “Redskins”, and (2) a new stadium can be built. I’ve already addressed the stadium issues in a prior column (read it here: http://www.thehogsty.com/2017/04/26/get-ready-for-a-virginia-stadium-everyone/). Absent a change of circumstances on that front, it seems likely that these legal developments will cause Mr. Snyder to be even more emboldened to keep the name regardless of the protests. From my perspective, that’s a good thing – I do not believe the name is offensive, and I do not believe that a vocal minority should be allowed to dictate to either the majority or a private company about corporate speech. The free market always wins – if the name is offensive, eventually the public will stop spending their money on the team.
If you want to know more about the history of the name “Redskins”, click here to read an academic study of the subject: http://anthropology.si.edu/goddard/redskin.pdf. Personally, I trust and recommend that paper far more than articles produced by the biased, slanted, inaccurate modern media.
Do you agree or disagree? Let us know either in the comments below or via @thehogsty on Twitter.
 Justice Gorsuch was not a part of this decision because he was not on the bench when oral arguments were made. There is no reason to think that he would hold an opinion to the contrary, and even if he did, it wouldn’t matter. When justices such as Clarence Thomas and Ruth Bader Ginsburg – who are as diametrically opposed in their traditional views as is possible – are on the same side of an argument, then there’s no argument left to be made.