They Found Offense

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  The ruling will affect the status of the Washington Redskins, whose trademark was revoked in 2014 for disparaging Native Americans.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.


What Does Gorsuch’s Nomination Mean


DJT will occupy the White House for two, maybe four, or if hellfire inundates the political landscape of these United States, for eight more years. In contrast, Neil Gorsuch will occupy his new seat in the Supreme Court for much longer. The Senate has, for one hundred years, required three fifths of the Senate (or sixty senators) to agree to vote to confirm a Supreme Court Justice. A cloture vote that would require the Senate to cease filibuster was too high for any majority party to intercede. This is because by tradition it was understood that Supreme Court Justices should be apolitical, and that both minority and majority parties should agree on the nominee.

In 2005 Supreme Court Nominee Harriet Miers met with the Senate Judiciary where she was encountered opposition. Miers had never actually served as a judge, and was perceived as one of Bush’s political protégés. At the time Republicans held a majority in the U.S. Senate, but requiring votes from Democrats, Miers withdrew her name knowing that she would never earn the approval of the minority party who would have filibustered. Enough Democrats did agree to nomination of the very conservative Samuel Alito who they believed to be less partisan and more experienced. In 1968 Republicans used a filibuster to delay a vote on Abe Fortas. He was not able to gain enough cloture votes to proceed, and Fortas soon thereafter withdrew his name. This system has worked for both Republicans and Democrats. Filibuster is a safety net to prevent political extremists from being elected to the Supreme Court.

President Barack Obama presented an apolitical centrist judge in Merrick Garland. The Senate (Mitch McConnell and the Republican leadership) decided that they would gamble on the 2016 Election by not allowing a hearing for Garland. Because they chose obstruction, America was deprived a Supreme Court Judge for over a year.

Then entered DJT who presented Neil Gorsuch, who unlike Garland was neither apolitical, nor a centrist. Republican senators, used their simple majority to block Garland, did not have enough votes to force a cloture. Instead of discussing Gorsuch’s nomination, and working with Democrats, they changed a one-hundred-year-old rule that protected Americans from electing political hacks into the Supreme Court.

The Republicans rushed to put in Neil Gorsuch. Perhaps, they acted so hastily because DJT is currently under federal investigation for treason, and the U.S. Senate wanted to install a conservative judge before impeachment hearings would ultimately halt the nomination process. Republican senators such as Ted Cruz certainly had no interest in investigating the nominee. During Gorsuch’s hearing the instead of asking him about pertinent issues regarding his his positions, the Texas senator asked him about how he enjoyed rodeos in Colorado. Democrats believe that DJT is not in a position to nominate a Supreme Court Justice because Supreme Court Justices, unlike U.S. Presidents, remain in power until they die or choose to retire, and the confirmation of a Supreme Court Justice with ties to a possible fraudulent Trump presidency would easily have devastating effects, lasting for generations.

Republicans will not hold the White House and Congress forever. What goes up must come down. The tide will turn, but this Senate rule will not. Mitch McConnell has affixed a Band-Aid to heal an infected contusion. He won this battle, but in the end America has lost. He has set a precedent to allow all future Supreme Court nominees to become political appointments. I hope that when Democrats win back the Senate, that they take the higher ground by reinstating filibuster for Supreme Court judges.