When Simon Tam founded his Asian American music band the Slants in 2006, he never imagined he’d wind up forging a common cause with an NFL team, especially the Washington Redskins. He’s not exactly a fan.
But on Tuesday, a federal appeals court in Washington effectively teamed the Chinatown dance-rock foursome with the 83-year-old football franchise in their mutual quest for unfettered First Amendment and trademark rights. The U.S. Court of Appeals for the Federal Circuit in Washington ruled that the government can’t ban offensive trademark registrations, wiping out an earlier rejection of the Slants’ trademark effort. The U.S. Patent and Trademark Office had denied the Slants’ application on the grounds that the band’s name offends Asian Americans, a violation of the 1946 Lanham Act. But the section of the Lanham Act that allows trademark registrations deemed offensive to be rejected is unconstitutional, the appeals court declared in a ruling that could wind up in front of the U.S. Supreme Court.
The Slants’ battle may sound quite familiar to Redskins fans. That’s because the Redskins have been fighting the same war against the Lanham Act in a different court, and so far they’re losing.
In July, a federal judge in U.S. District Court in Alexandria ordered the cancellation of the team’s trademark registrations because their name offends Native Americans and is therefore ineligible under the Lanham Act. The Redskins then took their case before the U.S. Court of Appeals for the 4th Circuit in Richmond, whose judges have yet to rule. But this week’s ruling in the Slants’ case gives the NFL team a huge boost.
Is Tam rooting for the Redskins? Yes, and no.
“The cure for racism and bad speech isn’t censorship,” said the 34-year-old bassist, who has pro bono legal representation but has shelled out about $15,000 in court fees to pursue his case.
Tam came up with band’s name as a subversive way to co-opt a slur, tackle racism and empower Asian Americans, much like N.W.A., the hip-hop group that references the n-word in its name. “We get to claim the identity as opposed to it being used to oppress people.”
Like many critics of the Redskins moniker, Tam doesn’t think team owner Dan Snyder — who insists that the name honors Native Americans — has the same intentions. Because Snyder is not a Native American, he can’t appropriate “Redskins” the way a Native American football team owner might.
“It’s pretty evident that Native Americans on the whole find the football team name’s extremely offensive and disparaging,” Tam said. “Snyder needs to realize the effect of what he’s doing on the community.”
Tam pointed to Red Mesa High School in Arizona, where the vast majority of students are Navajo and the mascot is the Redskins. “Is that appropriate? Of course. It’s their community. They can decide for themselves.”
Still, he defends the team’s right to a federal trademark.
“We are unlikely allies,” he said, noting that the Redskins filed an amicus brief in his case.
But he jokes that beyond their mutual legal battle, he has little interest in the team or football in general. “My Twitter feed is filled with ‘slants,’ but they’re talking about a football play that’s being run,” he said.
Tam would love to get his band’s trademark registrations as soon as possible, especially because other bands have named themselves the Slants, confusing fans who have bought tickets for the wrong shows.
Now he must wait for the next legal move. The Justice Department will probably ask the Supreme Court to review his case because of the declaration that a key provision of the Lanham Act is unconstitutional. If the Supreme Court takes his case and agrees with the appeals court, the ruling would give him and the Redskins a victory.
In the meantime, it would be nice, Tam said, if his allies at FedEx Field could help him out.
“If the Redskins were really vested in our case,” he said, “I would be more than happy to have them help pay my court fees.”