Supreme Court Rules Against Banning Offensive Trademarks, Helping Redskins’ Case

The Supreme Court on Monday ruled against a portion of a law that prohibits disparaging trademark registrations in a decision that could bolster the Washington Redskins in their legal dispute over the franchise’s name.

Supreme Court Justices Strike Down part of law In Case of Asian-American Rock Band The Slants

The ruling was unanimous, although the justices were split on their justification for striking part of the 71-year-old law. However, most of the reasoning relates to the First Amendment of the Constitution, which deals with freedom of speech.

“We now hold that this provision violates the Free Speech Clause of the First Amendment,” Justice Samuel Alito wrote in his opinion. “It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The justices ruled in favor of Asian-American rock band named The Slants, whose members argued that their name doesn’t fall under the disparagement provision. The Slants explained that they were seeking to adopt and change a term offensive to Asians, the way some homosexuals have embraced words like “queer.” The bands’ founder, Simon Tam, attempted to trademark the band name in 2011, although the United States Patent and Trademark Office denied the request on the basis that it offends Asians. A federal appeals court in Washington later ruled that the law banning offensive trademarks is unconstitutional.

The law concerned in both cases denies federal trademark protection to messages that may disparage people — living or dead — along with “institutions, beliefs or national symbols.”

The U.S. Government has applied the law inconsistently with regards to trademarks based on racial or ethnic epithets. For example, it has both accepted and rejected trademarks for the words “Heeb,” “Dago,” “Injun” and “Squaw.”

In 2015, a federal appeals court in Washington deemed the law’s disparagement provision unconstitutional in a case the Slants brought.

Writing for the majority in a 9-to-3 decision, Judge Kimberly A. Moore of the United States Court of Appeals for the Federal Circuit stated that while some of the rejected trademarks “convey hurtful speech that harms members of oft-stigmatized communities,” the First Amendment “protects even hurtful speech.”

In recent years, Supreme Court decisions have protected hateful speech, including protests at military funerals, portrayals of animal cruelty and lies about military honors. The court also ruled in 2015 in Reed vs. Town of Gilbert that laws “that target speech based on its communicative content” were “presumptively unconstitutional.”

Redskins owner Dan Snyder stated he was “thrilled” with the court’s decision, given that the trademark office has repeatedly alleged that the team’s name is offensive toward Native Americans. Redskins attorney Lisa Blatt claimed the court’s ruling effectively ends the team’s longstanding battle with the federal government.

“The Supreme Court vindicated the Team’s position that the First Amendment blocks the government from denying or canceling a trademark registration based on the government’s opinion,” Blatt said in a statement.

According to many recent polls and surveys, nine in ten Native Americans don’t consider the term “Redskins” to be offensive.

In the Redskins case, the trademark office registered the franchise’s trademarks in 1967, 1974, 1978 and 1990. However, it reversed course in 2014 by canceling six registrations, saying they disparaged Native Americans.

The original lawsuit regarding the Redskins name was brought by plaintiff Amanda Blackhorse, who alleged in her litigation that the term “Redskins” was disparaging to Native Americans. She claimed the nickname is a racist slur that never should have been trademarked in the first place. Washington has filed for trademarks on the team’s name four times since 1967.

The team has called itself the “Redskins” since 1932.

LANDOVER, MD – SEPTEMBER 03: A detailed view of a Washington Redskins helmet before the Washington Redskins play the Jacksonville Jaguars at FedExField on September 3, 2015 in Landover, Maryland. (Photo by Patrick Smith/Getty Images)