Daniel Snyder, owner of the Washington NFL team, offered a succinct reaction to a Supreme Court ruling Monday — and he put it in caps.
“I am THRILLED!” Snyder said, according to an email from the team’s public relations department. “Hail to the Redskins.”
His team registered an important victory when the Supreme Court ruled, on free-speech grounds, that federal trademark registrations may be granted even in most cases where they are considered derogatory. The high court’s unanimous ruling is a blow to the disparagement clause of the Lanham Act, linchpin of the case by which the U.S. Patent and Trademark Office canceled the team’s federal trademark registrations for “Redskins” in 2014.
Amanda Blackhorse, one of five Native Americans petitioners who brought the case, said she was disappointed by the high court ruling and by Snyder’s upper-case reaction.
“Now they have the freedom to register a racist name,” Blackhorse told USA TODAY Sports. “I don’t see what’s thrilling about that.”
The case, which was decided 8-0, concerned an Asian American dance rock band called The Slants. The team filed an amicus brief in that case. The team’s case is in the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., where it has been on hold pending the Supreme Court’s decision in the Slants case.
“The Team is thrilled with today’s unanimous decision as it resolves the Redskins’ long-standing dispute with the government,” said team attorney Lisa Blatt in a statement emailed by the team. “The Supreme Court vindicated the Team’s position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government’s opinion.”
Josh Schiller, an intellectual property litigator who is not involved in the team’s case, said it is effectively over. He expects the team to write a letter citing the Supreme Court decision and the 4th Circuit to overturn the district court decision that upheld cancellation of the team’s federal trademark registrations.
“Our case will most likely end,” Blackhorse said. “This is just another day for Native Americans. This is nothing new for us. There is rarely ever justice for Native Americans.”
National Congress of American Indians executive director Jackie Pata and Oneida Nation representative Ray Halbritter of Change the Mascot issued a joint statement that said in part: “This is an issue we have always believed will not be solved in a courtroom, and this ruling does not change some very clear facts. Washington's football team promotes, markets and profits from the use of a word that is not merely offensive — it is a dictionary-defined racial slur designed from the beginning to promote hatred and bigotry against Native Americans.”
The disparagement clause of the Lanham Act, passed by Congress in 1946, denied federal registrations for trademarks that consist of immoral, deceptive or scandalous matter or that might disparage persons or groups or bring them into contempt or disrepute. An appeals board of the trademark office relied on the disparagement clause when it canceled the team’s trademarks. The team has kept use of its registrations while the case is under appeal.
The band’s case was brought by Simon Tam, lead singer for The Slants, who said they chose their name as an act of re-appropriation — taking a name sometimes used to disparage Asian Americans and owning it “as a badge of pride,” thereby robbing a slur of its power. Tam has said he does not like the Washington team’s name.
U.S. District Court Judge Gerald Bruce Lee ruled in 2015 that the federal trademark registration program is “government speech” and therefore immune to free-speech challenges. Lee was relying on a Supreme Court decision that allowed Texas to ban specialty license plates with the Confederate battle flag. But the high court ruled federal trademark registrations do not constitute government speech.
“If the federal registration of a trademark makes the mark government speech,” wrote Justice Samuel Alito, “the Federal Government is babbling prodigiously and incoherently.”
Alito wrote that denying registrations that are offensive “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend. … Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’ ”
Lawrence Nodine, an intellectual property litigator who was one of three who wrote an amicus brief for the International Trademark Association in the band’s case, said the decision was the right outcome. “It’s a tough outcome to swallow because many people — even myself for good and proper reasons — don’t like the prospect of really offensive marks being registered,” Nodine said. “But in my view it was just not possible to defend the statute.”
The Slants had support from liberal and conservative groups, ranging from the American Civil Liberties Union to the U.S. Chamber of Commerce. The band also had the support of a group of constitutional law professors who argued the Lanham Act’s disparagement clause is unconstitutional.
“I don’t like anything about the Washington Redskins,” First Amendment scholar Rodney Smolla told USA TODAY Sports when the professors’ brief was filed in 2015. “I don’t like their name and I don’t like their logo. But as a free-speech lawyer, you’re often in the position of defending speech that you personally find distasteful.”
A statement issued in the name of Blackhorse and four other Native American petitioners called the high court’s ruling narrow: “It focused solely on whether the disparagement provision of the law was constitutional. Nothing in the opinion undermines the decisions of the (trademark office’s appeals board) or the District Court that the term ‘redskin’ disparages Native Americans.”
Schiller, the intellectual property attorney at Boies Schiller Flexner in New York, is a lifelong fan of the team. He said the 4th Circuit could rule on whether the team name was derogatory to a substantial composite of Native Americans when the registrations were granted beginning in the 1960s — the team argues they were not — but is more likely simply to overturn the lower court decision based on this Supreme Court ruling and leave it at that.
“The (lower) courts found the name is offensive,” Blackhorse said. “Now the Supreme Court says you can register offensive names. The question for the team is: Why would you want to?”
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