The cancellation of the six REDSKINS trademark registrations is not so much a victory for American Indians, as it is a defeat for commercial speech, which means a defeat for the First Amendment.
According to the Trademark Trial and Appeal Board (“TTAB”), 30% of American Indians consider REDSKINS a disparaging and offensive term. Even assuming that is so — and the flimsy record in the case does not inspire confidence — the decision should alarm Americans of every category. For the logic of the TTAB’s ruling gives any minority faction — regardless of the merit of their position — the power to deprive others of the important governmental benefit of trademark registration, which is a form of constitutionally protected commercial speech.
Many commentators have viewed the case as a contest over respect for Native Americans. But the TTAB ruling transcends the trademarks in question. One does not have to agree that a word with obvious racial overtones like “redskins” is an appropriate choice for a football team, to appreciate the chilling effects of the ruling.
The root of the danger does not lie with the 2-1 majority decision to cancel. It lies with the law they applied. Continue reading
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