Washington Redskins: Fallout from Supreme Court ruling in key case

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Oct 28, 2016; London United Kingdom; Washington Redskins helmet at practice at the Twyford Avenue Sports Ground in preparation for game 17 of the NFL International Series against the Cincinnati Bengals. Mandatory Credit: Kirby Lee-USA TODAY Sports /

In a long awaited decision directly affecting the Redskins pending trademark case, a unanimous panel of eight justices of the United States Supreme Court ruled that a provision of the Lanham Act barring registration of “disparaging” trademarks ran afoul of the free speech protections of the First Amendment.

The Lanham Act is the federal law regulating trademarks. The team’s case, which was brought against Amanda Blackhorse, is currently being heard by the Fourth Circuit Court of Appeals.

The Court’s decision arose out of the United States Patent and Trademark Office’s (“PTO”) reliance on the Act’s anti-disparagement provision in rejecting an Asian rock band’s application to trademark its band name, The Slants. This was the same provision that formed the basis of Blackhorse’s challenge to – and subsequent cancellation of – several trademarks formerly held by the Redskins. The team’s case was stayed by the Fourth Circuit pending resolution of the band’s matter.

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In ruling for the band, the Court turned away a battery of arguments by the PTO contending that the non-disparagement provision withstood constitutional scrutiny. While the Court acknowledged that a trademark’s principal aim is “source identification” – which is the use of a trademark to identify a product or brand – it also observed that trademarks can also embody expressive speech. This was particularly true for the band’s name, which was the band’s attempt to coopt a common racial slur for Asians and, in the process, sap it of its derogatory sting.

The fact that it may also have been disparaging to Asians was immaterial since, according to the Court, even racially offensive speech constitutes a “viewpoint” which enjoys protection under the First Amendment. As succinctly explained by Justice Alito, “Giving offense is a viewpoint.” By barring registration of those trademarks that are disparaging, the Act empowered the PTO to engage in discrimination between certain types of viewpoints. This, the Court held, was at odds with the central purposes of the First Amendment and thus unconstitutional.

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