Gabe Rottman of the ACLU writes:
An earlier blog on this site argued, rightly, that Dan Snyder, owner of a certain Washington football club, should voluntarily change the name of his team. He should. It’s demeaning and wrong, full stop.
The ACLU, one of the oldest racial justice organizations in the country, has an institutional obligation to call this stuff out when we see it. To the extent we are just adding our views on racial prejudice to the marketplace of ideas, this is not a free speech issue, despite what some have said.
But there are a few proposals in Washington that would force Snyder to change the name, and they raise broader issues regarding the government’s troubling ability to censor offensive speech. These proposals should be resisted as unwise for reasons that go beyond the immediate issue.
First, there’s an ongoing battle at the U.S. Patent and Trademark Office (USPTO) to revoke the team name’s registration as a trademark. Under the relevant section of the Lanham Act, the USPTO may not register vulgar (technically “scandalous” or “immoral”) trademarks or those that “disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”
The latter potentially includes the Washington NFL mark, but also and unfortunately something like this prominent lesbian motorcycle club, which proudly self-identifies using an epithet (and had to fight, in court, to maintain trademark protection).
The courts that have looked at the issue generally dismiss First Amendment arguments, finding that the only thing that’s denied is formal registration, not the trademark itself, which attaches automatically as soon as you use a distinctive slogan, logo, etc., in commerce. In practice, however, denial of registration would make it much more difficult to punish someone who uses the logo without permission, which would likely force Snyder to change the name.
At first blush, it might seem obvious that the USPTO should have the ability to deny registration to racist or vulgar trademarks. But, as with all things free speech, who gets to decide what’s racist or vulgar? That’s right, the government, which is just ill-equipped to make these kinds of determinations. The motorcycle group above is a good example of the potential unintended consequences.
To its credit, the USPTO’s Trademark Trial and Appeal Board (TTAB) engages in a very searching inquiry into whether a particular mark is offensive and considers extensive testimony and evidence by social scientists, advocacy groups, linguists, lexicographers, and others.
At the end of the day, however, the ultimate determination is inherently subjective and the TTAB and reviewing courts have a significant amount of discretion in deciding what’s disparaging and what’s not. It’s not unlike “I know it when I see it” in obscenity law, and it raises similar problems.
The rest here.