Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at the constitutional controversy surrounding the challenge to the name and logo used by the pro football team, the Washington Redskins.
THE STATEMENT AT ISSUE:
“I believe strongly in the rights of all Americans to celebrate and maintain their unique cultural heritage. Going forward, we will strive to maintain the ability of the United States Patent and Trademark Office to make its own judgment on these matters, based on clear authorities as established by law.”
– Excerpt from a statement on January 9 by Joyce R. Branda, an acting assistant U.S. attorney general, announcing the federal Justice Department’s plan to join in a lawsuit filed in federal court by the Washington Redskins seeking to protect the team’s right to continue using trademarks based on its name and its logo. The Department’s role will be limited to opposing the constitutional challenge by the team to the nullification of its trademarks.
WE CHECKED THE CONSTITUTION, AND…
One of the most valuable rights the Constitution creates is an exclusive right to make use of – and commercial gain from – the original and unique creations of authors and inventors. A section of Article I gives Congress the authority “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Those rights are implemented by the Patent Act and the Copyright Act.
For nearly 82 years, a professional football team has called itself the “Washington Redskins,” and it has had trademark protection for almost 48 years for that name and for designs and images based on the name. Now, after spending millions to protect its identity and that series of trademarks, and exploiting those marks to promote its team and maintain and build its fan following, the team is threatened with losing that protection. It believes that, if that happens, it will be punishment for a valuable form of expression, in violation of the First Amendment.
If the team’s lawyers are right, the First Amendment backs up the Constitution’s protection of its creation so that it would be unconstitutional to nullify its trademarks, as an agency within the U.S. Patent and Trademark Office has ordered.
The Redskins organization and its attorneys have a series of legal arguments on why the courts should overturn the decision last June by the Patent Office’s Trademark Trial and Appeal Board to cancel six separate trademarks. Among those arguments are the First Amendment claim, other constitutional claims, and several arguments based on trademark law and the record of the nearly quarter-century legal fight over the team name and logo.
A seldom-used section of federal trademark law – the Lanham Act – bars any trademark that is “immoral, deceptive or scandalous in nature,” if it “may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The key word in the Trial and Appeal Board ruling against the Redskins is “disparage,” which the law does not define.
It is that word, and the failure of Congress to define it, that is at the heart of the Redskins’ challenge in a federal trial court in Alexandria, VA. Since 1992, first one group of Native Americans and then a second one has been complaining that the name of the team and its designs “disparage” their cultural heritage as Indians. That claim amounts to an argument that the name and the logo are an ethnic slur. The first of those challenges ultimately failed in the courts, mainly for procedural reasons.
The second challenge led to a 2-to-1 ruling by the Trial and Appeal Board declaring that the ban on disparaging trademarks has been violated by the Redskins, with the remedy that it can no longer use those marks.
Under the Constitution’s guarantee of free speech, Congress does have the authority to impose some regulation, but if it attempts to do so, it must make very specific what is forbidden and what is allowed, according to court rulings. A form of regulation is invalid if it is so vague that ordinary people cannot be sure, in advance, what the government’s rules mean.
In filing their court case last August, the Redskins team management described the value of their trademarks this way: “A trademark communicates a virtually unlimited range of messages. In the complex commercial world that has developed over the past century, a trademark is a shortcut, a book reduced to a single word or phrase, communicating the quality, value, producer, sponsor, and limitless other attributes of a product or service. ... Trademarks are core speech … more akin to a film, novel, or work of art than to a mere proposal to engage in a commercial transaction.”
The section of the Lanham Act on which the mark-cancellation decision was made, the team’s lawsuit contended, was an attempt by Congress to regulate the actual content of the marks’message: “The language fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits, and therefore conveys no ascertainable standards for trademark owners to follow.”
Whenever a lawsuit in federal court makes a claim that a federal law is unconstitutional, the Justice Department has to be notified, and given a chance to come into court to stand up for that law. That is what the Justice Department chose to do last week, formally notifying U.S. District Judge Gerald Bruce Lee that the government would exercise its right to defend the Lanham Act against the challenge.
The Department did not use that formal notice to spell out the details of the arguments it will be making, but an official of the Department made it clear in announcing the move that the government sees the “disparagement” ban on trademarks as closely linked to protecting “the unique cultural heritage” of the American Indian population, past and present.
The case thus will provide a serious constitutional inquiry into how one may talk about such a heritage, an inquiry that may go well beyond what a football team calls itself.
