In a major ruling that reverses a longstanding statute, the United States Supreme Court has sided with the Slants, an Asian-American rock band that was denied a trademark by the US Patent and Trademark Office on the grounds that the name was disparaging to persons of Asian descent.
Writing in the majority opinion, Justice Samuel Alito declared, “The commercial market is well-stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear. If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”
Three years ago, online sports books had the odds of Washington being forced to change the team’s name at around Yes (+300), No (-500). As is often the case, the bookmakers got it right.
The ruling is a touchdown for Washington Redskins owner Daniel Snyder. Snyder has repeatedly refused to rename the NFL franchise, despite intense public scrutiny and even after multiple Native American groups said they found the team name to be disparaging.
In 2014, 50 US Senators, 48 Democrats, and two Independents, signed a letter sent to NFL Commissioner Roger Goodell asking the league to force the Redskins to rebrand. The document requested the league’s ownership send the message “that racism and bigotry have no place in professional sports.”
What’s in a Name?
Should the Supreme Court have seen the case in another light, the fallout could have been far-reaching. In American sports, there’s a host of potentially controversial team names.
In Major League Baseball, there’s the Indians and Braves, and some have a problem with the Yankees designation. In the NBA, there’s the Boston Celtics, characterized by an overweight, pipe smoking Leprechaun. There’s the NFL Kansas City Chiefs and Minnesota Vikings, and in college sports, the Spartans, Trojans, Scots, and Irish are among potentially “negative” names in NCAA athletic programs.
Of course, one man’s “offensive” is another’s “who really cares?” Cases in point:
The NFL’s Las Vegas Raiders are coming to town, albeit not until 2020. The Oakland franchise was initially going to be named the Señors, but was changed to the Raiders in 1960. Can a guy in a football helmut with an eye patch and swords on either side of his head be considered offensive? The Vegas Golden Knights are coming to play in the NHL this fall. Are knights a sign of white privilege? Classist elitism? Imperialist conquering? The Crusades?
It’s all in how you see it, and the High Court says it’s also all within the bounds of free speech.
The Patent and Trademark Office (PTO) had denied the Slants’ application by citing the Lanham Act. The 1946 federal statute requires trademark requests to avoid being disparaging in nature, and to avoid falsely suggesting a “connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The PTO tried to make the argument that trademarks are government speech, as they’re being approved by the federal agency. Justice Alito rejected that reasoning, saying, “It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”