Redskins' trademark usage boosted by Supreme Court ruling

Alvin Kelly
June 27, 2017

The First Amendment doesn't apply to "government speech", in which case the feds should be free to grant or deny trademarks based on offensiveness or "disparagement" as they see fit.

The Supreme Court ruling in the Slants case will likely give the Redskins leverage in their own court battle. As Slants bassist Simon Tam told Reason.tv's Meredith Bragg, the whole point of the band's provocative name was to challenge anti-Asian stereotypes.

In January's arguments, numerous Court's eight Justices wondered why the band's name wasn't protected by the First Amendment, when it came to trademark use. The Redskins' case in federal appeals court was put on hold until the Supreme Court ruled in the Tam case. "The disparagement clause violates the First Amendment's Free Speech Clause". It's "a bedrock First Amendment principle", wrote Justice Samuel Alito: "Speech may not be banned on the ground that it expresses ideas that offend".

The Redskins lost their own trademark registration in 2014 when the federal Trademark Trial and Appeal Board ruled in a 2-1 decision that the team name was disparaging to Native Americans.

"This journey has always been much bigger than our band: it's been about the rights of all marginalized communities to determine what's best for ourselves", he said.

The United States Patent and Trademark Office appealed that ruling to the high court in April, and the justices granted certiorari in September.

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An all-Asian rock band calling itself "the Slants" could not be denied the right to patent its name on grounds of being too offensive, the Supreme Court found in a unanimous ruling.

On Monday, the Supreme Court struck down a federal law that blocked offensive trademarks. Because all eight justices joined in the decision, it now stands as precedent for the Washington NFL case. Four justices peeled off from parts of the opinion where they say Alito opined on more than what was needed to decide the case. "It canceled the registration for the Washington Redskins in 2014 at the behest of some Native Americans who considered the name offensive".

Alito continued: "The proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate'". The briefs supporting Tam's position were researched and written by UCLA Law professor Stuart Banner and the students in his Supreme Court Clinic.

"Fortunately, today's opinion prevents the kind of absurd outcome that results when the government plays speech police", Rowland said.

The Supreme Court has upheld negative speech in recent years, even when it involved distasteful protests at military funerals or disgusting "animal crush" videos.

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