Fear not for the future of free speech after the Washington Redskins’ trademark fight. The legal dividend could be more free speech, not less.
A lot of my fellow First Amendment advocates sound nervous about cancellation of the Washington pro football team’s trademark by the United States Patent and Trademark Office this past week.
Even among those who sharply disagree with team owner Dan Snyder, who irrationally insists that Native Americans somehow are honored by a word that major English dictionaries call “insulting” and “usually offensive,” there is widespread concern that the patent office is deciding what trademarks are “disparaging” to Native Americans or anyone else.
The decision can’t force the NFL team to change its name but it could hit owner Dan Snyder in his wallet.
If the ruling stands up in court, he could lose the right to block other companies from selling caps, cups, jerseys and other merchandise with the name and Indian-head logo.
Critics see that potential penalty as an infringement on Snyder’s First Amendment rights.
Yet, viewed another way, the decision can be seen as an expansion of everyone else’s right to do what the government’s trademark only allowed Snyder to do.
But sometimes government not only is allowed but obligated to decide what is not only legal but also proper. The states, for example, routinely ban certain words, numbers or names from vanity license plates that they view as obscene or insulting.
A Santa Fe man, for example, unhappily lost his New Mexico vanity license plate in 2012 after state officials declared its message, “IB6UB9,” to be unacceptably naughty.
But we have courts to temper such judgments. The New Hampshire Supreme Court in May overruled state workers who rejected a request for “COPSLIE,” according to news reports. State regulations allowed for vanity plates to be denied if they were deemed “offensive to good taste.” (This particular request, I would add, also violates good sense.)