On Monday, June 19, 2017 the U.S. Supreme Court rolled back a long-standing Patent and Trademark Office regulation that prohibits disparaging trademarks. The Supreme Court ruled in favor of The Slants, a band whose name disparages Chinese and Asian people. The ruling will affect the status of the Washington Redskins, whose trademark was revoked in 2014 for disparaging Native Americans.
The ruling places the responsibility on minorities for being offended. Justice Samuel Alito stated, “Speech may not be banned on the ground that it expresses ideas that offend.” Similarly, Justice Anthony Kennedy added, “A law that can be directed against speech found offensive by some…” [italics added]. Both justices side with free speech because offense was “found” by someone.
In regards to the Washington Redskins mascot controversy, should we be asking ourselves whether offense was “found?” Or, should we be asking whether the name is threatening or disparaging? There is no question that the Patent and Trademark Office has historically curtailed free speech, but sometimes limitations on some speech promotes other freedoms such as life, liberty, and pursuit of happiness. For example, yelling the word “bomb” on a plane is an accepted restriction of free speech because it promotes safety to those travels by plane. Should majority populations allow minorities the same luxury of civil liberties that they allow themselves by restricting some free speech?
It is my opinion that the Washington Redskins mascot is not merely a case where a few people “found offense,” but it is a case where industry has promoted a threatening trademark. The Redskin mascot is an assault on indigeneity. It is a reminder of America’s genocidal past that brought the fall of many indigenous people and nations. The term streamlines an artificial identity that was crafted by white artists and businesspeople to define native people. To me, the Redskin mascot assures white Americans that “Indians” are people of the past; yet, over 5 million Native Americans live today. They do not often wear feather headdresses or buckskin leather, but the clothes of ordinary Americans, such as blue jeans, suits and ties, dresses, and even yoga pants. For many Native Americans, the term redskin does not refer to the copper-toned skin that Europeans navigators initially observed in the New World, but rather it is a reference to the bloody scalps of their dead ancestors that were collected by regional municipalities as a bounty in order to cleanse any indigenous claim to the land.
What if the Supreme Court ruled on a majority-disparaging trademark? Would the justices have reached the same outcome? What if the trademark in question was the Jacksonville Jew Killers, the Bakersville Blonde ‘Nads (with graphic anatomical images), or the North Dakota Norse on a Noose? Would these trademarks have been protected under free speech? The responsibility of offense should not rest on those who are disparaged and threatened. This Supreme Court ruling will yield unequal consequences for minority people.
Chances are that consumers will never have the opportunity to purchase season tickets to the Nashville Nazis because the U.S. market is tied to supply and demand, and disparaging a majority group is not a feasible market strategy. In 2017 there is still a market for minority-disparaging trademarks, and these brands will only cause peripheral complaints, which are easy to label as minority whining because they “found offense.” Supply-and-demand has never been tied to morality. The slavery, murder, and genocide of indigenous people (and other minorities) have all at one point been legalized in the United States under the guise of profit. The Supreme Court will not change its position until Americans revisit their values. Do we accept an environment where some Americans are disparaged and threatened? If Americans change their mindset and substitute profit with empathy, this ruling will change in time.