Now that the U.S. Patent and Trademark Office has struck a governmental blow against commodified ethnic insults, I’m nervous, because I may have “disparaged” somebody this morning when I buttered my toast. After I put away the Land O Lakes butter with that Indian maiden logo on the box, I bit off a chew of Red Man tobacco and climbed into a Jeep Cherokee.
The Washington football club ought to ditch its slur of a trademark, voluntarily. It ought to do so on the grounds of basic decency and good taste, and, you’d hope, with an intelligent sense of history, context and place. If they won’t do it willingly, then the rest of us and their colleagues in the NFL ought to embarrass, jeer and cajole them into it. But the method currently being employed, the mobilization of the U.S. government in favor of a correct sensibility, is wrong.
The split decision, 2-1, by the U.S. Patent and Trademark panel to cancel the Washington football club’s trademark registration is hollow for three reasons. First, team management again failed the decency and intelligence test in response to it. Second, the practical effect isn’t that they have to stop using the name, only that they might have trouble successfully barring others who use it. Third, and most important, government coercion is a lot more harmful than a lousy word.
Nobody would like to see a name change more than me, and no one has made more fun of owner Daniel Snyder on this subject. But the USPTO decision came in a political climate that is queasy-making. It came after months of various Feds leaning on the team in ways that make it hard to feel a sense of victory. Sen. Maria Cantwell (D-Wash.) has threatened to examine the NFL’s tax-exempt status. The Federal Communications Commission has threatened to bring a criminal charge against the club for “indecency.”
The trademark case is indirectly about policing speech. Denial of a trademark registration is not the same as banning the use of a word, no. But it came in concert with several other forms of government pressure, and that fact is concerning enough to put the ACLU and Fox’s Megyn Kelly in the same camp over its free speech implications.
“At first blush, it might seem obvious that the USPTO should have the ability to deny registration to racist or vulgar trademarks,” wrote Gabe Rottman, a legislative counsel for the ACLU, last December in an essay considering the team’s trademark question. “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.”
You don’t really want government agencies to become the arbiter of acceptable words and images. You really don’t. The main reason you don’t is because, like it or not, what’s offensive is subjective. It creates “a morass of uncertainty,” Rottman wrote. Consider how many offensive violations someone could find in one episode of “The Family Guy.” Or “Game of Thrones,” or “Orange Is The New Black.”
“Being offended is the natural consequence of leaving one’s home,” Fran Lebowitz wrote. She added, “I do not like after-shave lotion, adults who roller skate, children who speak French, or anyone who is unduly tan. I do not, however, go around enacting legislation and putting up signs.”
In his dissent from the trademark decision, USPTO panelist Marc Bergsman observed that “the context” in which a word is used “changes the perception of the term.” For some people the word “Redskins” has lost all of its vicious old meaning and represents their beloved Sonny Jurgensen and Billy Kilmer; for others it’s a hate term. Personally, I find it distasteful in all contexts. But how is a bureaucracy supposed to effectively arbitrate its “real” meaning without a lot of unintended consequences and restrictions?
Trademark law prohibits the registering of names that “may disparage” individuals or groups, or “bring them into contempt or disrepute.” But in actuality American Indians are constantly treated with contempt by corporate America, and we don’t even notice it. As Thomas King observes in his withering book, “The Inconvenient Indian,” “Sometimes you can only watch and marvel at the ways in which the Dead Indian has been turned into products.” Indians have been turned into cars, and underwear brands, and Crazy Horse malt liquor. The football trademark case hardly rectifies the problem King identifies, which is that Americans have no respect for their own antiquities, and don’t recognize how badly they continue to junk and trash them.
“Dead Indians are dignified, noble, silent, suitably garbed,” King writes. “And dead. Live Indians are invisible, unruly, disappointing. And breathing. One is a romantic reminder of a heroic but fictional past. The other is simply an unpleasant, contemporary surprise.”
That’s got the ring of absolute truth to it. But no governmental traducing can put that epiphany into the heart of a team owner or the league commissioner, or a fan. There are competing priorities here: anti-disparagement vs. absolute free speech. Trouble is, if you over police the latter you might stifle King’s ability to write so powerfully about the former. He actually toyed with entitling his book “Pesky Redskins.”
For more by Sally Jenkins, visit washingtonpost.com/jenkins.
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