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Could the Feds really force the Redskins to change their name?

April 5, 2013 by Scott Bomboy


Hot issues in Washington don’t only include the budget and fiscal cliff. It’s the name of the city’s NFL team that has some people crying foul.

800px-Redskins_vs_Giants_line_of_scrimmage_throwbacksThe Washington Redksins are an iconic brand in football and the most popular pro sports team in the D.C. metro area. The team formerly known as the Boston Redskins moved to Washington in 1937, and they’ve won five NFL titles since, including three Super Bowl wins.

Forbes magazine ranks the Washington franchise as the third-most-valuable team in the NFL, at $1.6 billion. The current owner, Daniel Snyder, bought the club for $700 million in 1999. The team could easily go up in value as it becomes a contender again, led by Robert Griffin III.

But that hasn’t stopped some long-term fans and local leaders from asking Snyder to drop the “Redskins” nickname, since they view it as offensive to Native Americans. Some Native American groups have made the same request.

The team has argued for decades the name originated in the 1930s as a tribute to the bravery of Native Americans and also as a tribute to a team coach from that time period.

In February 2013, team general manager Bruce Allen repeated the club’s stance. "There's nothing that we feel is offensive," Allen said. "And we're proud of our history."

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On Friday, former Federal Communications Commission chairman Reed Hundt wrote in a Washington Post editorial that the time has come for Snyder to act in the best interest of the community.

Hundt said that he and “other former FCC officials and concerned parties [have] asked Snyder to change the name of our beloved football team—so that broadcasters no longer would have to describe it using a name they would never use in any other context.”

Hundt believes the FCC has the power to investigate if it can fine broadcasters who use the team’s name in public while describing a game, or in any context.

“As chairman of the FCC, I prosecuted a case against Howard Stern for violating indecency rules. Such cases have often led to subtle debates in appellate courts about the application of the First Amendment,” he argued.

In his letter to Snyder, Hundt uses the term "XXXSkins" to refer to the team.

Whether the current FCC could put financial pressure on Snyder is at best a theoretical question. If anything, the FCC could be relaxing its rules about indecency—when it does enforce them.

This week, the FCC asked for public comment on whether it should cut back on enforcement to focus on only the worst cases. But there would be some hope for nickname opponents, since the FCC wants feedback on focusing on “deliberate and repetitive use [of expletives] in a patently offensive manner.”

But the FCC also announced this week that it had eliminated 70 percent of pending indecency complaints filed since September 2012.

Last June, the Supreme Court confirmed the right of the FCC to fine over-the-air broadcasters if they aired profane words. It also said the FCC had to make its rules clearer to broadcasters.

One issue would be whether anyone can prove in court that the word’s use is obscene or profane.

In its official guidelines, the FCC states: “Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time.”

Its rules for profanity are different.

“The FCC has defined profanity as ‘including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.’ Like indecency, profane speech is prohibited on broadcast radio and television between the hours of 6 a.m. and 10 p.m.,” the FCC policy reads.

It has been years since the FCC has issued a significant obscenity fine against a broadcast TV network.

Washington, D.C., mayor Vincent Gray also wants the name changed, and he has said that the team shouldn’t be allowed to move back to the city of Washington to play their games until it has a new name.

Currently, Snyder’s team plays in Maryland and has a lease on that stadium until 2026.

Other opponents are using a different tactic: attacking Snyder’s ability to trademark the team’s name. In 1999, the Trademark Board did rule in favor of taking the Redskins trademark away from the team, in a decision that was later reversed.

That battle took 17 years and ended on the steps of the U.S. Supreme Court, when the justices refused to hear an appeal.

On March 6, a group was in front of the Trademark Board pursuing the case again. It could take years to move forward. Their hope is to put enough financial pressure on Snyder to drop the name and replace it with something he can trademark and get paid for.

Washington Post columnist Sally Jenkins has also taken up the cause. (If her name sounds familiar, she was granted the last interview with the late Penn State football coach, Joe Paterno.)

“It would be nice if the NFL franchise in the nation’s capital were an example for all the land. But apparently Snyder takes his example from 10th graders,” said Jenkins in February, citing a campaign by the team that talked about 70 high schools that shared the same name with the NFL club.

Jenkins argued that most teens don’t understand why the name could be construed as an insult.

“Given that the most recent National Assessment of Educational Progress found that only 12 percent of high school seniors were proficient in American history. And only 2 percent were able to identify the social problem addressed by the Supreme Court’s decision in Brown v. Board of Education,” she said.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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