The following editorial appeared in Thursday’s Chicago Tribune.
Stanford’s sports teams weren’t always known as the Cardinal. Dartmouth squads have been called the Big Green only for the past four decades. Generations of students passed through Marquette before any began cheering for the Golden Eagles.
Those schools once had Indian-themed nicknames. They gave them up in response to complaints from American Indians who found them insulting, and the schools have all done just fine. The NFL team in Washington would as well if owner Daniel Snyder would abandon his obstinate attachment to the name “Redskins.”
He ought to change the name. That said, what the government did Wednesday to force his hand is troubling.
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The United States Patent and Trademark Office canceled the club’s trademark on the grounds that the law bars registration of insulting trademarks and “a substantial composite of Native Americans found the term Redskins to be disparaging.”
That doesn’t mean Snyder has to change the name. But if the ruling stands up in court, he stands to lose the right to prevent other companies from selling merchandise with the name or logo. He will lose a protection the government routinely confers.
The government, in effect, is penalizing Snyder for exercising his First Amendment rights.
The name of the team is offensive. But the First Amendment does not protect Americans from being offended. It protects them from being silenced or punished by the government for what they say.
That’s why Nazi marches and flag-burning protests are allowed despite the disgust they evoke.
True, the trademark office has long enforced the anti-disparagement provision in federal trademark law. In 2011, it refused to grant a trademark to the website Stop! Islamization of America for that name because many Muslims might find it offensive.
But the Washington Redskins football team has been using that name since the 1930s, and for a long time, the patent office has had no problem with it.
The trademark policy itself is constitutionally suspect.
“The bottom line is that commercial speech gets substantial protection, and trademarks are commercial speech,” said Northwestern University law professor Martin Redish, who happens to agree the name is offensive. “This amounts to a content-based regulation of speech.”
It’s hard to see why the government should deny an insulting trademark any more than it should refuse to grant copyright protection to books with offensive titles.
Snyder really should wise up to public sentiment on this. The lesson of the experience with colleges and high schools is that reasonable people can adapt to changing social expectations.
Once upon a time, the majority of Americans didn’t worry much about offending American Indians or other racial minorities. But as racial equality has gained nearly universal public support, it became increasingly hard to justify these nicknames.
The NCAA has banned them, with rare exceptions. The University of Illinois got to keep calling its teams the Illini as a reference to the state, not the tribe. But it retired Chief Illiniwek.
Daniel Snyder is stubborn, tone deaf and insensitive. But a censorship-minded government is the bigger danger.