Debate Forum: 12/6

On the offensive

The Slants, the Redskins, and the law against disparaging trademarks

By Sarah Sidlow

The Supremes are cleaning out their summer inbox. 

Among the hundreds of petitions seeking review, the High Court has hand-picked eight to address. One item up for consideration: an Asian-American dance-rock band, and possibly by extension, the Washington Redskins football team.

Feel like you’re missing something? Here’s the situation: the band in question is called The Slants. They’re from Portland, Oregon. All four members are of Asian Pacific Islander descent and are active in the Asian-American community. They’re well known at cultural festivals and anime conventions for their self-described “Chinatown Dance Rock” and have made it their mission to combat racist ideas and stereotypes. Their discography includes: Slanted Eyes, Slanted Hearts; Slants! Slants! Revolution; Pageantry; The Yellow Album; and Something Slanted This Way Comes.

Are you getting the point?

Well, turns out some people aren’t as keen on The Slants’ name as The Slants are. Enter the Washington Redskins, who have also intercepted more than one complaint over their possibly derogatory moniker.

Like from the Patent and Trademark Office, which denied protection to the band and team, citing something called the Lanham Act, a part of federal law that bans federal registration of trademarks that disparage
“institutions, beliefs, or national symbols.”

But this fight was right up The Slants’ alley. Last year, a federal appeals court in Washington flipped the script on The Slants’ case, calling Lanham Act’s disparagement provision unconstitutional. The majority essentially cautioned that the law not be used to limit First Amendment protections of free speech, which in recent years have been extended more than ever before to protect offensive speech—think: protests at military funerals and depictions of animal cruelty.

The court also argued recently, in Reed v. Town of Gilbert that laws “that target speech based on its communicative content” were “presumptively unconstitutional.”

Simon Shiao Tam, the band’s frontman, argues the band’s use of the term is anything but derogatory in nature. In fact, he claims the band’s goal is to reclaim the word, in the same way the gay community has embraced the term “queer.”

“Us too!” echoed the Redskins. And while many agree that names like The Slants and the Redskins are actually offensive and in poor taste, they worry about the possibility of government maintaining the authority to make that decision for us. Moreover, many claim, the Big Bad Government hasn’t been too consistent on handing down those decisions. (The Patent and Trademark Office has been accused of rejecting trademarks of similar race-related names, but then later registering those same terms.)

But there are still many (like those in the Patent and Trademark Office) who uphold that the Lanham Act doesn’t tread on a person or group’s free speech protections. First of all, they say, no one is trying to tell The Slants they can’t use the name, print it on posters, sell T-shirts, or scream it on stage. Rather, the law is in place to provide “federal benefits on terms that encourage private activity” in line with legislative policy.  Others argue that a line should be drawn between “free speech” and “commercial free speech” under the First Amendment. Still others argue, simply, the spirit of the law is to protect against disparaging language, and terms like “slant” and “Redskin” fit that bill.

The Washington Redskins, themselves having been turned away from the Patent Office numerous times, will have to watch from the sidelines as The Slants’ case plays out.

 

Reach Dayton City Paper forum moderator Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.

 

Onus on us, not our government 

By Patrick Bittner

This country was founded on a handful of fairly simple principles that at the time seemed like radical ideas. Freedom of religion, freedom of the press, and most importantly, freedom of speech were guaranteed in that most sacred of our documents, the Constitution.  And yet, while most Americans respect the power and intent of the First Amendment, its provisions often spark the most controversy. The old adage “your right to swing your arms ends just where the other man’s nose begins” holds as true today as it did when John B. Finch said it in 1882. However, the conflict in this case is not a violent one but rather one of taste. Our nation’s capital currently has one of the most offensive sports team names, mascot, and general franchise in the entirety of the professional sports industry. The Washington Redskins are currently appealing the removal of six trademarks that the team enjoyed. And while this may seem like a fairly clear decision, it is anything but.

A unique provision in an otherwise boring law has given the executive agencies the ability to deny or remove trademarks that are found to be “disparaging.” The Lanham Act, passed in 1946, was intended to strengthen the ability of the federal government to prevent or prohibit certain activities involved in the trademarking process. Most interestingly, the act contains a “disparaging provision,” which was intended to prevent the federal government from granting trademarks to, and thus supporting, names and titles of institutions it deemed to be “disparaging” to a group of individuals. And while this provision was based on good intents, it has been found unconstitutional, as it directly interferes with the First Amendment’s free speech clause.

Whatever your beliefs on this issue, you cannot deny that one of the greatest aspects of this society, for better or worse, is our desperate reliance on free speech. We use it every day to defend and offend, to promote and demote, to support noble causes, and to demean those we find to be wrong. And while it is the role of the government to create an undeniable sense of equality among its citizens, it is not the responsibility of the government to censor football teams or band names; however, it is a slippery slope from allowing an overtly demeaning sports franchise name to be trademarked and the state sponsoring racist and bigoted organizations.

Rather than revoke the trademarks of the Washington Redskins and the Portland-based band The Slants, the government should remove itself from the question. The Redskins should voluntarily change their name—and as the football team of the American capital, they should do it in a hurry. They should change it because the name is a relic from a less civilized time in our history.  The Slants are using their name to make a statement and should be allowed to do so, as they are artists and, as such, are using their art to make a political statement.

As it is social change, the public should be the true driving force behind change of this nature. If we cared about the name of the football team, we as a society should push to change it. The fans should stop buying tickets and hotdogs and instead write owner Daniel Snyder to tell him they want change. This is one of the greatest failings of our culture, as of late: we get more easily upset more frequently than ever before, but we have become more apathetic and disconnected from social change, as well. If something makes you upset, or angry, or you disagree with it, do not rely on anyone else to make the change you want. It is the responsibility of each and every one of us to make the changes we want to our culture and society. And if it needs to start with changing an outdated and racist football team name, then let’s get to it. Too much recently have we let our differences divide us, rather than our common goals unite us. So I implore you, make a change in your community, strive to make it a better place each and every day. And I promise that if each of us does this we will all see the change we so desperately desire happen in our lifetimes.

 

Reach DCP freelance writer Patrick Bittner at PatrickBittner@DaytonCityPaper.com

 

Thought Police storm Trademark Office

By Ron Kozar

Don’t turn the Trademark Office into the Thought Police. Trademark protection should not depend on whether liberals approve of your marketing strategy.

If offense-taking were the test, nothing but innocuous symbols and bland, vanilla logos would be safe bets for trademark protection. Slogans and symbols that use clever irony or quaint anachronism, by contrast, would be left to the mercy of a lawless marketplace, where anyone would be free to pirate or poach them. If a Chinese hornswaggler puts a cartoon image of Tony the Tiger on a box of knock-off cornflakes, our trademark laws would come to Kellogg’s aid.  But if that same Chinaman decorates his fake fare with Uncle Ben, Aunt Jemima, or other imagery that some committee of tight-sphinctered pecksniffs finds offensive, the trademark cop would just fold his arms and shrug.

Come to think of it, even Tony the Tiger would probably be deemed offensive, judging by the infantile hoo-ha over the killing of Cecil, the big fluffy lion. And if the user of the mark were a company liberals hate, such as Papa John’s or Home Depot, you can be sure that some trademark-office Lois Lerner would treat the company’s application with extra skepticism.

There’s not much that fails to offend these days, and the ones most easily offended are the ones most likely to work in agencies like the Trademark Office. Consider the kids our colleges are processing today. The ones you’ve read about who flee to the nearest “safe space” when someone says “niggardly?” The ones using Play-Doh to calm their hurt feelings over the election? Those are tomorrow’s civil servants, tomorrow’s drafters of anti-bullying codes—and tomorrow’s Trademark Police. Heaven knows they’ll never find work in the private, productive sector.

No amount of definitional finesse would prevent arbitrary, politically selective trademark enforcement by such people. Take the word “disparage” in the City Paper’s debate question.  That word denotes an intent to demean. But consider the best known user of a supposedly disparaging trademark, the Washington Redskins. When they took that name, the team was not making fun of Indians. On the contrary, they wanted to be respected and feared for fighting prowess, just as the red man once was. They chose the name Redskins not because the name is disparaging, but because it is not. Other teams with similar mascots—the Braves, the Fighting Sioux, the Warriors—sought to borrow that same luster from those same legendary fighters for the same reason. Were their intent to demean, such teams would instead have to name themselves the Clowns, or perhaps the Diversity Officers. Consider, too, the Redskins’ supposedly disparaging logo, a lifelike, almost photographic profile, not a cartoon or caricature, of an Indian in the feather headdress of a brave. No Indian would see shame in that image, unless he is ashamed of his own reflection in the mirror.

But the Thought Police officers who run the trademark office are deaf to such logic. The are the same idea-haters whom we unthinkingly put in charge of our schools and libraries, where they have long-forbidden as racist such timeless classics as “Huckleberry Finn” and “To Kill a Mockingbird.” With the trademark office in their hands, the same book-burners will have more tools with which to purge ideas from our literature. They need only withhold copyright protection from the Mark Twains and Harper Lees of today. Faced with the prospect of publishing books that anyone with a scanner could reproduce and disseminate with official impunity, no publisher would come within 10 feet of any author located anywhere to the right of Reader’s Digest on the political spectrum.

Bear in mind that copyrights, trademarks, and the like are intellectual property. Protecting property, of course, is one of the basic roles for which men bothered instituting governments in the first place. If your right to intellectual property disappears because liberals take umbrage at your ideas, then what does the future hold for physical property?  Maybe liberals can start withholding police protection from, say, the Westboro Baptist Church or David Duke’s campaign headquarters.  And once we allow open season on their intellectual and physical property, how soon will it be before liberals declare official, government-sanctioned open season on the disparagers themselves? The slope leading to that outcome may not seem slippery, but the sympathy that liberals express these days for politically motivated lawbreaking, whether over pipelines in Dakota or over blocked highways and shattered storefronts in Ferguson, should make you think twice before you roll your eyes.

The solution is not to quarrel over how slippery the slope is, but to stay off the slope, and to base trademark protection on commercial factors rather than political ones. If a trademark really is offensive, the user will feel it in his wallet. No one will want to pirate it. If Uncle Ben offends you, don’t buy his rice.

 

Ron Kozar is a lawyer in Dayton. Reach him at RonKozar@DaytonCityPaper.com

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Sarah Sidlow
Reach DCP editor Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.

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