Constitution Daily

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Professor tries Hail Mary pass to shut down Redskins nickname

October 17, 2014 by NCC Staff


A George Washington University law professor is making a unique constitutional argument to pressure the Washington Redskins into changing their own controversial nickname.


350px-Washington_Redskins_logo.svgJohn Banzhaf III, 74, first made a name for himself in the 1960s when as a young public interest lawyer he led an effort to get tobacco advertising barred from television and radio.


The law professor has his share of admirers and critics, as over the years he’s fought for equal access to public bathrooms for genders, and the clearer labeling of foods, and he sued Spiro T. Agnew to recover the bribes Agnew received as a public official.


But now Banzhaf is tackling arguably the biggest force in the District of Columbia outside of the three branches of the federal government: the Washington Redskins team and its owner, Daniel Snyder.


Snyder and Redskins’ management have been on the offensive against critics who think the team’s name is racist and an insult. The team has invested heavily in a marketing campaign to make its position clear.


Banzhaf clearly feels the name is offensive, but he’s taking a different legal line of attack to force Snyder to drop the Redskins name.


Banzhaf has filed a complaint with the Federal Communication Commission against a Washington-area FM radio station owned by Snyder and affiliated with ESPN. His complaint is that the station uses the word excessively in its on-air programming.


“Despite whatever the origins of the word ‘R*skins’ may be, or the original intent of the owner who first gave the team its name, the evidence is now overwhelming that the current meaning is an offensive demeaning racial swear word, not only to many Indians, but also others,” Banzhaf said in a September filing.


In media interviews, Banzhaf has compared the use of the words to “fighting words,” language used to incite violence that isn’t protected by the Constitution’s First Amendment.


The Supreme Court ruled in 1942 in a case called Chaplinsky v. New Hampshire that “fighting” words are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace” and the use of “epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.” Over the years, the Court has narrowed its definition of fighting words.


Banzhaf isn’t the first person who raised the idea that the FCC would need to deal with a legal situation about the Redskins name being spoken on public airwaves.


Former FCC head Reed Hundt and 11 other former communications officials asked the agency in an April 2013 open letter to bar the R-word. “It is inappropriate for broadcasters to use racial epithets as part of normal, everyday reporting,” the group said.


Other attacks on the Washington team’s name have come from legal actions taken on copyright issues, with the hope being that the loss of merchandise revenue would force a name change.


In June 2014, the U.S. Patent and Trademark Office ruled against the team’s trademark because it was “disparaging to Native Americans.” Snyder has appealed the ruling to the Trademark Trial and Appeal Board.


The trademark battles date back to 1992 and the first round ended in 2009, when the Supreme Court declined to hear an appeal in a case called Harjo, et. al. v. Pro-Football, Inc.


Banzhaf’s efforts target the ability of TV and radio stations that feature announcers and advertising using the Redskins name from getting their FCC license renewed easily. On Tuesday, three Native Americans filed their own petitions with the FCC, making the same argument.


But one letter sent to the FCC sides with the Redskins and argues that Banzhaf’s language poses a First Amendment threat. Dr. Jerry A. Johnson, the president of the National Religious Broadcasters group, says Banzhaf’s labeling of the R-word as an example of “hate speech” goes too far.


Johnson argues that the definition of hate speech is too vague and would result in expunging “opposing viewpoints from the marketplace of ideas,” therefore exceeding the FCC’s powers.


Also, Jonathan Turley, Banzhaf’s fellow professor at George Washington, says he disagrees with Banzhaf’s logic (even though Banzhaf is teaching Turley’s torts class while he is on sabbatical).


“I certainly understand and respect the arguments of those challenging the name and my primary interest is not the merits of the dispute but the means by which it is decided,” Turley said.


“I do not believe that government agencies or boards should make this decision and view it as a further expansion of the administrative state into social or political controversies,” Turley added.


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