Federal court: Feds can't strip trademarks just because they're supposedly offensive

The Washington Redskins were not a party to the case in question here. The successful plaintiffs, rather, were a rock band of Asians who call themselves The Slants. But the Redskins and the NFL understand the stakes in the Slants case, which is why they filed a brief in favor of the band - and why they have to be happy with the outcome:

"The government enacted this law - and defends it today - because it disapproves of the messages conveyed by disparaging marks," wrote the court in its decision. "It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys."

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The NFL filed a statement to the court supporting The Slants.

"This freewheeling ability to deprive trademark owners of significant benefits because of what they say through their marks strikes at the very heart of the First Amendment values this country holds dear," the league argued. Redskins team owner Daniel Snyder has insisted the name is not offensive to Native Americans, but many Native American groups dispute that and have fought the trademark in court. Some politicians, including President Obama, have urged the team to change its name.

That last sentence should read: "Some politicians, including President Obama, prefer to harangue the Redskins rather than deal with their failure to do their actual jobs." The government's argument in the case was that the First Amendment protects you from prosecution for what you say, but it doesn't entitle you to special protections like a trademark. And you can certainly make the case that the First Amendment is indeed so limited. Conservatives often argue that your right to free speech doesn't come with a right to be heard, listened to, taken seriously, etc. So you could also make the case that it doesn't entitle you to exclusivity for the purposes of marketing a trademark.

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But the way the government is trying to apply the law makes the idea being expressed - and the government's opinion of that idea - pivotal to the question of whether a trademark is granted or maintained. The Redskins are not accused of falling short of trademark standards any more so than the Vikings, Steelers, Ravens or any other team. The only issue is that, at a given point in time, the government decided it didn't like the content or idea connected to the Redskins' trademark, and that alone led to the decision to pull the trademark. That makes it a legitimate First Amendment case because the Redskins qualify for the trademark in every way except for the fact that the government doesn't like the content of its message, and the government should not be in the position of arbitrarily making those judgments. If the Slants can keep their trademark based on this legal precedent, it seems like a slam dunk that the Redskins will be able to successfully cite the same ruling in their appeal. They certainly should. And if the Redskins name and logo are really offensive to any significant number of people, then the Redskins will pay the price in their failure to market them successfully. Does anyone really believe that will be the case, though? This has always been a hulabaloo about nothing, and hopefully this ruling is the start of its end - and the government can move on to addressing issues that actually matter. Not that this particular government is likely to do that very effectively. But at least they'll have stopped harassing a football team that has done nothing wrong to anyone. Except play many years of terrible football, which weirdly may not be enough to keep them from winning the NFC East this year. They deserve to win this legal battle a lot more than they deserve that victory and the home playoff game that would come with it.

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