The Corner

ACLU Begrudgingly Comes to the Redskins’ Defense

You may be an “a**hole” for defending the name of the Washington Redskins, but that doesn’t mean the American Civil Liberties Union thinks the name should be changed at the government’s behest.

In a recent blog post, “’You’re Not Wrong, You’re Just an A**hole’” — the title is a reference to a line in The Big Lebowski — the ACLU comes to the team’s defense, arguing that the U.S. Patent and Trademark Office (USPTO) acted unconstitutionally when it stripped the team of the trademark protection for “Redskins,” concluding that the name disparages American Indians. With many on the political left — including President Obama and leading congressional Democrats Nancy Pelosi and Harry Reid — voicing their opposition to the name and applauding the decision, the ACLU is an outlier in its defense of the team on free speech grounds.

“We don’t disagree with that judgment, but the government should not be able to decide what types of speech are forbidden — even when the speech in question reflects viewpoints we all agree are repellent,” attorney Esha Bhandari wrote on the organization’s site. The team filed a lawsuit challenging the USPTO’s decision last year, and the ACLU followed up on Thursday with a filed brief outlining why the decision was wrong:

  • “[V]iewpoint-based regulation of private speech is never acceptable”: This is a central tenet of the First Amendment. The ACLU points to Texas v. Johnson, the Supreme Court case on whether burning the U.S. flag was protected free speech, in which the court ruled that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
  • “Section 2(a) of the Lanham Act violates the First Amendment”: The USPTO’s decision to cancel the team’s name cited this section of the primary US trademark law, which says that trademark status can be refused only if the trademark in question “may disparage” a group of people. But the Simon & Schuster, Inc. v. Crime Victims Board case should invalidate that statute, according to the ACLU. They argue that section 2(a) is inconsistent with the First Amendment, insofar as it “imposes a financial burden on speech because of its content,” and that the statute practices a form of “viewpoint discrimination” improper for the government.
  • The “literal marketplace”: Further taking issue with the Lanham Act, the ACLU refers to arguments in United States v. Alvarez, a case concerning the constitutionality of the Stolen Valor Act, a law criminalizing false claims about military-service medals. In Alvarez, the court ruled that the Stolen Valor Act was unconstitutional because it was “inconsistent with the maintenance of a robust and uninhibited marketplace of ideas.” Linking that decision to the government’s efforts to rid the Redskins of their name, the ACLU argues that the same reasoning applies, “especially so in the trademark context, where a literal marketplace allows members of the public to register protest through boycotts or other traditional First Amendment means.”
  • “Vague and overbroad”: Section 2(a)’s wording is problematic because it is “impossible to gauge,” says the ACLU. The organization writes that the vagueness and overbreadth of the statute poses a “risk of arbitrary enforcement and may lead to self-censorship.”
  • The Slippery Slope: If the USPTO’s decision is validated by a court, the ACLU worries that it will create a precedent that “empowers any individual to seek and obtain the cancelation of a registration that the USPTO [sic] finds offensive.” The group calls it the “slipperiest of slopes.”

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