Legal analyst Kimberly Wehle on the 14th Amendment and whether it can be used to keep Donald Trump off the ballot.
Guest Host: Susan Page
Yesterday the U.S. Patent and Trademark Office canceled the trademark registrations of the Washington Redskins. A panel of three judges at the agency ruled the football team’s name is disparaging to Native Americans. The team says it will appeal the decision but pressure is building for change. This is the second time the Washington Redskins team has had its trademarks revoked: In 1999, the Patent Office ruled the name was disparaging, but the decision was overturned on appeal. Critics of the name say this time is different because of a groundswell of objections, including a letter signed by fifty U.S. senators. Supporters of the name argue it honors Native Americans, and that forcing a name change violates freedom of speech. Guest host Susan Page and a panel discuss the debate over a trademark and changing ideas about what’s offensive.
- Gregg Easterbrook Author, "The King of Sports: Football's Impact on America." He is a contributing editor of "The Atlantic Monthly" and "The Washington Monthly," and a columnist for ESPN.com.
- Bruce Fein Principal, Bruce Fein & Associates and author of "Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy."
- Christine Haight Farley Law professor, American University Washington College of Law; author of the forthcoming book "Global Issues In Trademark Law"
- Jacqueline Pata Executive director, National Congress of American Indians; former Deputy Assistant Secretary for Native American Programs of the U.S. Department of Housing and Urban Development (HUD) during the Clinton Administration. Pata is a member of the Raven/Sockeye Clan of the Tlingit Tribe (pronounced – Kling-get) and a member of the Central Council of the Tlingit-Haida Indian Tribes of Alaska.
MS. SUSAN PAGEThanks for joining us. I'm Susan Page of USA Today sitting in for Diane Rehm. Yesterday, the U.S. Patent Office announced it was canceling the Washington Redskins trademark registrations. The agency cited what it called disparaging effects of the football team's name on Native Americans.
MS. SUSAN PAGEJoining me in the studio to discuss what the ruling means for the Redskins and other sports teams around the country: Gregg Easterbrook of the Atlantic magazine and ESPN, Christine Haight Farley of American University's Washington School of Law, Bruce Fein of the law firm Bruce Fein and Associates. And joining us from Chico, Calif., Jacqueline Pata of the National Congress of American Indians. Thank you all for being with us this hour.
MR. GREGG EASTERBROOKThank you, Susan.
MR. BRUCE FEINSure.
PAGEWe're going to invite our listeners to join our conversation later in this hour. You can call our toll-free line, 1-800-433-8850. Send us an email, firstname.lastname@example.org, or find us on Facebook or Twitter. Well, Christine Farley, let's start with you. And before we start, let me note that we asked the Washington Redskins football team to send a representative to have someone to be on the show to talk about this dispute. They declined to do so. They have issued a statement. We've posted that on our website. Christine Farley, so tell us what this ruling means. Does it mean the Redskins have to change their name?
PROF. CHRISTINE HAIGHT FARLEYNo. It doesn't mean that the Redskins have to change their name. There is nothing in trademark law which would prohibit anybody from using any particular word as a trademark, but it did order the cancellation of six of their trademarks that include the word Redskins. And that ruling may be appealed, and so that order may stay pending the appeal. But if those registrations were to be cancelled, it would put the team at a disadvantage in protecting its trademarks.
PAGESo its income from Redskins jerseys, Redskins coffee cups, all the Redskins paraphernalia you see when you go to a game would be at risk.
FARLEYWell, they would be at risk. They wouldn't be lost. I think the team would continue to assert common law trademarks in those names, and the team may have some viable claims under the trademark act that would persist. But they would lose many benefits that are in trademark law as a result of the registrations. For instance, a big one is they would lose the benefit of being able to stop infringing goods from crossing the border. Customs wouldn't be able to help them in the way that they do with a registered trademark.
PAGESo they'd lose some money, probably.
FARLEYI think they would lose some money.
PAGEAnd the divided court, a 2-to-1 court, and it ruled that the name had to be disparaging in the years the trademarks were created, from 1967 to 1990. So the issue isn't are they disparaging now, but were they disparaging at that point.
FARLEYYeah. The legal question is whether the marks are deemed disparaging to the reference group, in this case, Native Americans, at the time of registration, and these six marks were registered during the period of 1967 to 1990.
PAGENow, within the statement from the Washington Redskins, they say, "we are confident we will prevail once again, and the trademark trial and appeal board's divided ruling will be overturned on appeal." That's a reference to the fact that this is the second time the Redskins have failed in this venue. The first time was in, I guess, 1992.
FARLEYWell, the opinion against them came out in 1999.
PAGEIn 1999. And it was overturned on appeal. So why are things different now? Won't it be overturned on appeal again?
FARLEYWell, a few things, and those differences, I think, are significant. The first is, ultimately that decision was overturned on appeal because of a defense of laches, which is a defense that the particular petitioners had unjustifiably delayed in bringing their claim. In this case, there are six new petitioners who are very young, and I think they effectively deal with that question of laches because they can't have been held to a delay before they reach the age of majority.
PAGEThey were 18 years old.
PAGEThese current ones. Jackie Pata is joining us from California. She's executive director of the National Congress of American Indians. Jackie, thank you for being with us.
MS. JACQUELINE PATAThank you.
PAGEAnd so what did you think yesterday when you heard about this ruling?
PATAWell, we've been waiting for a long time for the ruling to come out, so we were, one, excited that it came out and delighted with the outcome of the ruling. You know, we think that this is, hopefully, a pivotal point on this issue for NCAI and, of course, Indian country. And so we were very delighted with the ruling.
PAGESo, as a Native American yourself -- you're a member of the Tlingit tribe -- tell us why you and other Native Americans, many other Native Americans, find the term Washington Redskins -- why do you find that offensive?
PATAWell, because, you know, if you even look in the history of America, you'll see -- and we've even published on our website, you know, ads that said, red skins, and they would actually, you know, take the skins of Indians for bounty. And then they would be paid those bounties during the time of elimination. It was definitely, you know, a time of genocide for Indian country, one way or another, through either disease or by, you know, these slaughters.
PATAAnd it's not a memory that honors us or respects. I think today, even if you look at today, the issue of mascots, but particularly this issue of the term, you know, from the Washington team name, it doesn't -- it continues to make you feel like you're less than other regular people. And I think where we're talking about today and today's environment, we want to be respectful of tribal leaders and tribal government, who they are today as Indian people, Indian children, and not have these iconic mascots representing something that in caricatures that were representing something that is derogatory and that isn't really respectful of who we are.
PAGESo you think this was a good decision that the court made yesterday.
PATAOh, absolutely, absolutely.
PAGESo, Bruce Fein, do you think this was a good decision?
FEINNo. I think it's a frightening decision in some ways. Let's take the description that was given as to why it was thought appropriate for the trademark to be revoked, that it create or evoked images that were unattractive to Native American Indians. And go back to the case in 1970s where Neo-Nazis marched in Skokie, Ill. in a neighborhood composed of Holocaust survivors.
FEINAnd the Holocaust survivors said this disparaging to me. The whole idea of Nazism evokes all sorts of terrible things about the genocide of Jews. A Supreme Court held unanimously, well, in free speech, it's there to protect speech we hate, not speech that we love. And if you even go back to the description of this being the first nail which could be on the coffin of the use of the Redskins, it's true that the immediate economic impact on the Redskins may be marginal. But the principle established in the ruling, say, will lay around like a loaded weapon ready for use to suppress unwanted speech.
FEINNothing prevents a state now, under state common law by statute, from enacting a law that says Washington Redskins can receive no protection under state common law. The Internal Revenue Service, with authority from Congress, could state that any advertising expenses by the Washington Redskins will not be deductible because it's disparaging.
FEINAnd you can go down the lot where people will find a party, a political party, is disqualified from receiving FEC matching funds because the idea of the know-nothing party conveys something very hostile to various groups in the United States. We need to go back to what Voltaire said. I may disagree with what you say, but I'll defend with my life your right to say it. The Supreme Court has repeatedly said that the remedy for ill-counseled speech is not enforced silence, but more speech.
PAGESo you're saying the government shouldn't be able to rule out this name, to rule against this name. But do you believe -- and I know this is a different question. Do you believe the word Redskins is a disparaging one?
FEINOftentimes words in context are in the eyes of the beholder. I'm sure, in some people's minds, it's very disparaging. I'm certain some people reading "Huckleberry Finn" and reading the N-word about Jim, they would find that very disparaging. Others would find it a way in which you describe the bigotry of slavery.
PAGERight. And I realize that people might disagree, but I'm asking you yourself. Do you find the term disparaging?
FEINIn the context of which it arose, no. I do not associate Washington Redskins -- maybe it's because I grew up in Palo Alto where the Stanford Indians, at that time, had a mascot as an Indian that went up and down the football field before the games with Cal. I didn't associate it with -- there were a lot of other things that were bad that we did to Native American Indians, but being on the football field wasn't one of them.
PAGEGregg, I saw on the newspapers this morning, the front page of USA Today, the front page of The Washington Post, the front page of The New York Times, the front page of The Wall Street Journal, all made reference to this decision on the Washington Redskins. Why does this excite so much interest and such strong passions?
EASTERBROOKWell, 'cause America's obsessed with football. It's our national religion. So this is almost a religious issue. I would agree with Bruce's First Amendment point. I think public pressure is a much better reason to change the name than federal action. I think public pressure's coming. And one reason it's on the front page of all the newspapers, it is 100 percent certain that this name is going to change. It's just a question of when.
EASTERBROOKAnd I would add to the discussion of this. Think a second, the history of this franchise originally, the Boston Braves and the Boston Redskins, now the Washington Redskins, there is a major skeleton in the Redskins closet and that is that they were the most racist team in professional sports history, the very last team to integrate when all the other NFL teams were integrated in the 1950s.
EASTERBROOKThe owner of the Washington Redskins at that time refused to allow blacks to play and simply had to be forced to do so by the federal government. Now, of course, no one in current Redskins' management was in any way responsible for that, but, still, to have the most racist franchise in professional sports also be the only franchise with a racially offensive name, it's just a double-whammy. And it has to change.
PAGEYou have some other teams, though, that have Indian-related names, the Chicago Blackhawks, the Cleveland Indians, the Atlanta Braves, the Kansas City Chiefs. Do you think change is also coming for those teams?
EASTERBROOKI don't because those names are not disparaging. The Blackhawks, for example, are named after the Sauk chief, Black Hawk, who was an important figure in Illinois history. Braves and chiefs are terms of respect, and Indian -- Cleveland Indians, Cleveland -- the word Indian is misnomer, whether it was the Stanford Indians or the Cleveland Indians, but it is a word that's used in polite speech. We have a Bureau of Indian Affairs a couple of miles away from here in Washington. Redskin is not a word that's used in polite speech. If I was talking in public to an Indian and called him a redskin, he'd get angry.
PAGEWe're going to take a short break. When we come back, we continue our conversation, and we'll go to the phones and take some of your calls and comments. You can also send us an email, email@example.com. Stay with us.
PAGEWelcome back. I'm Susan Page of USA Today sitting in for Diane Rehm. And joining me in the studio, Bruce Fein, author of "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy." And Christine Haight Farley, she's a law professor at American University. She's author of the forthcoming book "Global Issues in Trademark Law."
PAGEAnd Gregg Easterbrook, he's a contributing editor to The Atlantic and Washington Monthly magazines. He's a columnist for ESPN. He's the author of "The King of Sports: Football's Impact on America." And joining us by phone from California, Jackie Pata, executive director of the National Congress of American Indians, she served as the deputy assistant secretary for Native American Programs at HUD during the Clinton Administration.
PAGEWell, Jackie, let me ask you a question. We saw with the Donald Sterling controversy that the sports authorities stepped in when there was an issue of racial insensitivity. Do you think the NFL commissioner ought to step in in this case and force this issue?
PATAWell, you know, we've reached out to the NFL commissioner on several occasions to be able to take some action. And at first, we thought -- you know, he said he'll listen. He wants to listen to both sides. And he wanted to learn about the issue. But, clearly, you know, there is no action being taken by the NFL commissioner. I think that, you know, the NFL commissioner certainly is in a place to be able to -- to make some decisions or to be able to step in. Do I think he will? I haven't seen any indication whatsoever that he will make that determination at all.
PAGEBut, Christine, if this issue is upheld on appeal, it could affect other NFL teams, right? They share revenue, so something that costs Washington Redskins protective revenue affects all of them. Would that make the other owners of teams weigh in on this issue?
FARLEYYeah, I imagine it would. I'm not sure why the trademark system is structured like that in the NFL. But perhaps this is exactly why so that rational decisions will be made about their trademarks. I think the cost of litigation affects the NFL as a whole. I think the lack of revenue stream or secure legal rights is something that the NFL will feel. And that will probably cause them to apply pressure to the team.
PAGEBruce, do you think that's one of the repercussions of this decision potentially?
FEINWell, it can be, but there can be factors militating in the opposite direction. That is, the owners fear, well, it's Redskins today and Dan Snyder. Maybe it's going to be me tomorrow. Because typically these clauses in these associations about good character, ethics, whatever, it's very opaque, and you can smuggle a lot of stuff in there. And they have staggering amounts of money invested in their franchise. They're risk adverse, and so they're really timid about having somebody ousted because of a team name.
PAGEYou know, Gregg, you said earlier in this hour that you were 100 percent sure that this name, the Redskins, is going to be changed. It's just a question of when. But in an interview with my colleague Erik Brady last year, Dan Snyder said, never. He said, you can put that in capital letters. And the question he was responding to was specifically, if the Redskins lose in this patent case, will you change the name? Dan Snyder has not left much wiggle room.
EASTERBROOKWell, it is hard to talk in capital letters, but I will say in capital letters, I am certain that the name will change. It's just a question of when. The league is embarrassed by it. Everybody's embarrassed by it. Dan Snyder, you're talking about an arrogant billionaire who has raised his middle finger to the public many times before. He once sued City Paper, which is a local Washington independent newspaper, just for running an article criticizing him.
EASTERBROOKHe cut down trees on public land -- in my column I call him chainsaw Dan Snyder -- without permission to do so and without ever replanting. And, by far, most significant is it pertains to this debate. When President Obama said six months ago that he wanted the Redskins name to change, Dan Snyder had his attorney Lanny Davis send a very insulting hectoring letter, basically lecturing the President of the United States, how dare you criticize Dan Snyder. That's the man's attitude. There are a lot of other owners who do not feel that way about public opinion.
PAGEBut if that's his attitude...
FEINI think that -- if I could...
PAGEYes, please, go ahead.
FEINThat sounds like -- I remember George Wallace saying, segregation now, segregation forever. And then he was kissing black beauty queens before he retired from politics. So never is not a word that you want to use very often in public today.
PAGEOf course, he was a politician. Dan Snyder is a business owner. Does it make him in a better position to resist even a rising tide of pressure?
FEINWell, he's got an obligation according to the ethics to maximize shareholder profits. And if he's running shareholder profits down because he's sticking to an unpopular name, his fiduciary duties sort of dictate that he abandon it.
FARLEYYou know, there are such a thing as...
PATAAnd I also think...
FARLEYWell, go ahead.
PATA...I also think that, you know, the sponsors are going to step in at some point too. And how might the other sponsors of the team are going to be want associated with this rising tide of political and social law?
PAGEAnd, you know, Jackie, you mentioned sponsors. It's FedEx Field, right? How much more identified can you be with the Washington Redskins than that? Jackie, do you think that advocates for change are going to try to put pressure on sponsors like FedEx to either withdraw their sponsorships or at least raise objections, register themselves as offended by the name?
PATAAbsolutely. I -- that's -- you know, one of the things that we're working on right now is wanting to be able to make sure that the sponsors -- you know, the sponsors need to be as socially responsible as they need be for their -- like you said, for their own business and their profitability. And these issues are some of the challenges. And, you know, I would think the sponsors like Bank of America, FedEx, and other folks would want to be -- want to take a look at whether or not and how closely they want to be associated to this team, particularly after this decision.
PAGENow, Bruce, you've raised concerns that the government shouldn't be limiting the rights of the Washington team to call itself whatever they want to call themselves.
FEINYes, because they're picking -- the government shouldn't be in the business of picking and choosing based upon opinion or public opinion as to what gets government benefits and whatnot. There's one principle in First Amendment law that's time honored. Viewpoint discrimination is, per se, unconstitutional. And that's what's going on here. The people who interpret the word as a disparaging, that viewpoint is viewed as not acceptable, and therefore they're punishing the Washington Redskins by depriving them of a legal right. And that principle, in my judgment, is wrong and could spread to many, many other areas.
PAGENow, if pressure is brought not by the government, but by pressuring sponsors, by -- some church groups have raised objections by -- some 50 U.S. senators have signed a letter objecting. If the pressure came that way and it basically made it necessary politically from business terms to change the name, would you have similar objections?
FEINNo, not at all. I think that's how a lot of the gay rights issues have worked out with boycotts and whatever. That's what the democratic process is about, changing minds, advocacy. That's the difference between civilization and tyranny here. And so I don't have -- I defend the rights of everyone to criticize Dan Snyder as I would defend the rights of Dan Snyder to defend himself. That's what free marketplace ideas is about.
PAGESo, Jackie, what do you think about that, the objection that, OK, push for the name to be changed, but we shouldn't use the government to do it because of our protection of free speech?
PATAWell, I think that both things are going to happen. I think that the government has a responsibility to be able to look at these issues. You know, I'm just like anybody else. I want to protect the rights of free speech, but I also want to be able to make sure that, you know, these terms, such as a term of the Washington team name, which is so disparaging, this is a term that can be legally used for profits when the federal government has a responsibility.
PATAAnd if the federal government didn't have a trademark review process, then it wouldn't have that responsibility. But it does have a trademark review process. And that's what the trademark commission does. And they reviewed it, and they gave their opinion.
FEINBut the trademark review process is supposed to be evenhanded among viewpoints. There's nothing -- the government doesn't have to have a trademark review process. But once it sets it in motion, it can't get -- discriminate and give or withhold based upon the viewpoint. That is the problem here.
FEINAnd I go back. What's wrong with Neo-Nazis saying we want to raise money because we celebrate the Holocaust? And the government's saying, you know what, you can't use the streets to go march in Skokie, Ill. because there are a lot of Holocaust survivors there. And the Supreme Court unanimously said, free speech protections are to protect speech we hate, even if it's Dan Snyder's Washington Redskins, not the speech that we love.
PAGEBut of course this ruling doesn't mean they can't call themselves the Redskins. It just says they can't have U.S. patent protections for the name.
FEINYeah, it would be like saying to the Neo Nazis that you can still have Neo-Nazis. You just can't march in Skokie, Ill. where they're on public streets, and you can't get any money as a political party. There's no distinction in the First Amendment.
EASTERBROOKIf we had an NFL team called the Washington Neo-Nazis, don't you think there'd be some public resentment of that?
FEINOf course, and it should be responded to in public debate. The government doesn't step in and say, you know what? You can't deduct your advertising expenses, you can't get any FEC funds because we dislike your name. That's how the system's supposed to work. And I go back to trademark. That's fine, but once you have a system of government privileges, it has to be applied with viewpoint neutrality. That's the First Amendment requirement.
FARLEYSo this issue of whether this provision violates the First Amendment has been addressed by at least a court, and it has been continued to be discussed in many of the cases. This is a prohibition written by Congress into the Trademark Act. The trademark office is required to review trademark applications and deny registration to any mark which is not just disparaging, but marks which are deemed immoral or scandalous.
FARLEYSo all of these prohibitions raise these concerns. But what the courts have said is that because this is not in any way a prohibition on the use of the mark or a prohibition on adopting such matter as trademarks, it doesn't interfere with one's ability to speak. And it doesn't completely deny a party the ability to have trademark benefits that are enforceable under federal law in federal court. It denies them the ability to put those words in the trademark register. And it prevents the trademark office from having to expend its time in resources on such matter, which is harmful to the public.
PAGEIf there was a sports team -- if there were no Washington Redskins but a new sports team came and wanted to call themselves the whatever Redskins -- wanted to use the name Redskins, would the patent office approve it today in this climate?
FARLEYThey would not. They would not. There have been 14 trademark applications recently filed including the word Redskins. And each of these have been denied by the trademark office as being disparaging to Native Americans.
PAGEAnd, Gregg, when you think about the names that teams go by, is there a changing climate about what is seen as acceptable and what is seen as unacceptable?
EASTERBROOKOh, social climate changes all the time. I'll give you an example. Charles Aycock, a century ago the governor of North Carolina, leading American advocate of universal public education, at that time a controversial idea, a great man in his work in public education, was also a white supremacist. So should we accept his name today on public buildings? Yesterday, Duke University decided no and took Charles Aycock's name off a public building. Public feelings about imagery and symbolism evolve with time. In the 1930s, maybe Redskins was OK. It's not OK now because public sentiment has evolved.
PAGELet's go to the phones and let some of our listeners join our conversation. Alonzo is calling us from Charlotte, N.C. Alonzo, you're on the air.
ALONZOEveryone doing? I'm happy to speak with you guys, but most of my points actually ended up being discussed. I practice IP law here in Charlotte. And I was just offended that the idea that an economic driver like profit from the use of a word gets the same treatment as a fundamental right to speak. And you guys covered it, and the conversation turned, I think, in the right direction.
ALONZOTrademark law is not meant to protect all forms of speech. It's meant to give a monopoly for certain uses of logos, symbols depicting goods and services. It does not mean that you inherently have the right to disparage or use hate speech. And I think that's the exact purview of our government to control people's ability to profit in a marketplace where they're using harmful speech and have some sensibility about it.
ALONZOIt doesn't mean you can't say -- it doesn't mean you can't go into a public forum and scream at the top of your lungs, whatever you want to do. But you should not be able to profit from it in our marketplace. And I think that you guys really covered that issue, but I can take your comments off the air.
PAGEOK. Alonzo, thanks so much for your call. I'm Susan Page, and you're listening to "The Diane Rehm Show." We're taking your calls at 1-800-433-8850.
FEINIf I -- could I respond to that, Susan?
PAGEBruce, go ahead.
FEINSuppose you had a team that was owned by white supremacists, and they filed for a trademark. And the trademark office says, you know, if we give you a trademark, that'll redound to the benefit of white supremacists who blacks and others despise for that supremacy idea. And therefore you can't have a trademark because it actually gives you economic benefits. Or the IRS says, you know, you can't deduct any of your advertising expenses because it's economic, and it'll promote white supremacy that we think is disparaging or insulting to a large portion of the population.
FEINThose are simply not acceptable under the First Amendment. Just because it involves money doesn't mean you can discriminate based upon viewpoint discrimination. Could you tell somebody you can't get a Social Security check because you belong to an unpopular despised Neo-Nazi party?
FARLEYWell, there's a bit of a paradox when we talk about speech and trademark rights because earlier Bruce said he disagreed with this ruling because he felt that the answer to harmful speech is more speech. And actually denying someone a trademark right in speech might product more speech because what you get with a trademark is the monopoly rights, as the caller mentioned. You get to prevent others from using that particular word. And it isn't the case that the team has lost all rights to the word. They still maintain common law rights, but, you know, any loss of rights means that other people can speak it.
FEINWell, I was talking about advocacy. I wasn't talking about use of the names. They're arguing that Dan Snyder should eliminate the use of the word Redskins. And they say -- you say, well, they're still common law rights, but under the principle established by this ruling, states could eliminate the common law rights. We think that this is disparaging to Native American Indians, and we, by statute, are going to prohibit any common law protection of trademark of Redskins.
FARLEYActually, most states do have statutes that prohibit the registration for disparaging marks in the same way that the federal law does.
FEINYeah, so you're already agreeing that it goes beyond just the trademark here on the federal level, that they can't use the mark at all.
PAGEWe invite our listeners to register your opinion on our website. We're running a question that says, do you think the Redskins should change their name? Take our poll at drshow.org and let us know what you think. Well, Jackie, one of the things that national polls have shown is generally Americans -- a solid majority of Americans do not think the Redskins should have to change their name. And I wonder if that weighs at all in kind of your thinking about this?
PATANo, not at all. You know, it's so hard when you -- one poll versus another poll. And this was one thing that Dan Snyder kept throwing up in the early conversations around this issue is, well, we have a poll behind us. And we have a poll of Native Americans, self-identified, no -- you know, without the methodology that actually identifies who's really taking a poll and, you know, what the association is. Are they really enrolled members of tribes? Do they live in tribal communities?
PATAYou know, it goes on and on. The bottom line is, polls are useful sometimes for politicians. But polls don't really say what's right and what's not right. This is just not right. If we were going to listen to polls, women still wouldn't have the right to vote, and we'd still have slavery. If the polls were taken -- you know, as the polls were taken during those time periods. The polls to me just are not an indicator of what is right and what's not right.
PAGEJackie Pata, executive director of the National Congress of American Indians. She joins us from California. In the studio with me, Gregg Easterbrook from ESPN, author of "The King of Sports," Christine Haight Farley, a law professor at American University, Bruce Fein, principal at Bruce Fein and Associates. We're going to take a short break. When we come back, we'll go to the phones. We'll take your calls and questions. We get your suggestions on alternative names for the Washington Redskins. Stay with us.
PAGEWelcome back. I'm Susan Page of USA Today sitting in for Diane Rehm. And we're discussing the issue of the trademark revocations for the Washington Redskins yesterday. With me in the studio Christine Farley, Bruce Fein, Gregg Easterbrook. And joining us from California, Jackie Pata. Well, here's a tweet from Joan. And she asks, "Can you discuss other cases of trademarks being canceled? How often? What conditions? How is it free speech?" Can you address this question, Christine, of previous cases that might be applicable?
FARLEYYeah, there was a case just about a month ago that was heard by the federal circuit court of appeals, and it involved an application for the mark, stop the Islamization of America. I think this was a mark not yet in use but was a mark intended for use. And it was flagged by the trademark office as being disparaging to Muslim Americans.
FARLEYIt was decided by the same court that decided the case yesterday, the TTAB, who decided that it was disparaging. And it was appealed to the federal circuit, who agreed with the TTAB, that it was disparaging, relied on similar evidence that the case -- that was involved in the case yesterday, that is dictionary definition and usage of the term and denied registration to that mark.
PAGEYou know, one thing that strikes me about this debate is how different it is from the one over changing the name of the Washington basketball team. You know, it was the Washington Bullets. And the owner of that team became concerned, I think, in the 1990s about the -- all the gun violence in Washington and having a name -- having the team called the Washington Bullets. He decided he wanted to change it. They had public, you know, they had like a public thing where you could send in possible names.
PAGEAnd then we had a vote, and then we ended up being the Washington Wizards, here. I wonder if this is a little bit of a missed opportunity, Gregg, on the part of the owner of the Redskins.
EASTERBROOKWell, one of the reasons I think the name is certain to change -- in capital letters -- is that it's not going to cost Daniel Snyder or whoever may own the Redskins in the future any money to adopt a new name. Changing from the Bullets to the Wizards didn't have any harm to the Wizards' fortunes. In fact, their revenue has increased steadily since then.
EASTERBROOKFootball's very popular. You could call the Washington franchise anything you wanted to and it would continue to be very popular. And since almost all of its income comes from national television revenues, the sales of coffee cups are not that important to begin with anyway.
PAGEGregg, are the -- is the controversial name, is there any sign that it's affecting attendance at game or the popularity of the Washington Redskins?
EASTERBROOKNFL attendance is down slightly over the last five years. That's throughout the league. There's worry among owners that a saturation point is being reached at the same time that HDTV has become a better way to watch games. But I don't think that has anything to do with the Washington franchise.
FEINSusan, if I could interject this idea. It's been flirted from time to time. You could use -- if this disparaging terminology harms the public why not take the trademark by imminent domain? It's a property right. You pay just compensation. And then change the name. That's how we take other private property, through just compensation. If we think that there's a larger national interest at issue.
PAGEI've got to say I'm not a lawyer. I'm not sure I follow that. Christine, what do you think of that idea?
FARLEYIt's crazy. I was going to mention when you asked about other cases. There are other cases that weren't attacked through trademark law. So there have been other racists trademarks used in history. People are probably very familiar with Sambo's, for a restaurant chain. And there was also a mark that disparaged Native Americans, Crazy Horse, for a malt liquor. And in each of those cases, there were government actions that sought to prohibit the use of those marks, regulations, kind of zoning regulations, permit regulations, and in the case of Crazy Horse, a bill by Congress. Those were attacks on the use. And those were deemed to be unconstitutional for that reason.
PAGEYou know, I wonder if it would even be a financial boon to change the name. I don't know if this happened with the Washington Wizards, Gregg, but if you change the name of the team, wouldn't everybody have to get, like, new memorabilia with the new name? Wouldn't you have a big sale there?
EASTERBROOKI can tell you that I wrote that 10 years ago in, of all places, NFL.com, the leagues on website, not only calling the Redskins name disparaging, but saying the economic incentive was to force everybody to buy new apparel and gizmos anyway, which would have whatever the new name is, the team will remain just as popular.
FARLEYAnd they'll buy up all the old stuff as well.
FEINIn defense of imminent domain, I want to point that in the Kilo decision, the U.S. Supreme Court said, you can take private property just for the purpose of economic development. And therefore there's -- it may be an odd political idea, but certainly it's not at all outside the Supreme Court's rulings on imminent domain.
PAGELet's go to our listeners. We're giving our listeners a chance to vote on whether the Redskins should change their name. We'd like to discuss maybe what some alternative names might be. We're going to go to Rob in Roanoke. Rob, thanks for joining us.
ROBOh, you are so welcome. I appreciate this discussion. And I appreciate the opportunity, particularly with everything going on in Washington at this point, to be the first one to go officially on record with the new name for the Washington team, and that is the Washington Immigrants.
PAGEAnd why do you think that would be a good name, Rob?
ROBWell, the whole issue going on right now, all the debates about illegal immigration, the whole -- the fact that we are -- except for the Native Americans, we are, in fact, a nation of immigrants. One could go back and say even the Native Americans came over from -- over the Bering land bridge a long time ago, but we are, in fact, a nation of immigrants.
ROBAnd we have built this nation -- I think of Paul Robeson's song, "The Ballad for Americans," and how "building a nation was awful tough, the people found the going rough. Thirteen states weren't large enough so we started to expand into the western land." And all of the features that suggest that it is in fact -- when things are working well it is, in fact, our diversity from immigration that makes this country so strong.
PAGERob, thank you so much for your suggestion. Now, Gregg, I think you said you had some ideas, too, for possible names.
EASTERBROOKI'll give you several possible names. Washington Red Tape, impossible to get through them. Washington One Percent, ferocious in defense of their position. Washington Insiders, in good years, we call them the powerful insiders. And here's -- this is actually a serious suggestion. I got some Native American word names if you want to keep the Native American iconography. And I'll give you just one.
EASTERBROOKThe Apache word for very large man is chonee (sp?). So the Washington Chonee. It not only sounds cool, you keep all your Indian imagery, but you can even keep the fight song. "Hail to the chonee, hail victory, braves on the war path, fight for old D.C." It even rhymes.
FEINYeah, well, I…
PAGEJackie, what do you think about that idea of using another Indian name to keep that history here, but not a name that would be seen as offensive?
PATAWell, first of all, I would be -- I would say talk to the Apaches and see how they feel about that because I think that's what you need to do anyway. But I think one needs to remember why these Indian mascots came about in what era of this time of the country. You know, even when the Washington football team took this name in 1932, it was a time when, you know, Native people -- there was bills in Congress to terminate tribes.
PATAThere was bills banning our ability to have our ceremonies and our dances. Native Americans could -- had limited rights to vote. They had to prove citizenship. I mean, this was a time that wasn't, you know, when this country was definitely an environment where they, you know, felt like they were still conquering the Indian. And so you have all these names that came out during that time period, which, you know, I find very difficult to believe were honoring Indians at that time, when we were still having to, you know, have these federal policies of assimilation and forced termination.
PATAAnd so, you know, when you talk about new terms that would potentially keep the American Indian spirit alive through sports, I think there's other ways of keeping the American Indian spirit alive. And it doesn't have to be through necessarily these sports. But if there is a sport name, the first thing I'd always advise people is go to the folks that are responsible for that word, that term, that local team, you know, that local tribe and see how they feel about it first.
PAGEYou know, Jackie, we've gotten several emails about the word Redskins and what it means. Here's one from Sandy. She writes, "Certainly Native Americans are not red. How did the term gain such a foothold in our lexicon?" We've had another listener write in with their theory about the word Redskins originally meant. Can -- do you know?
PATALike I said, there's a lot of different theories, but the one thing that we do know is that Redskins came from the bounties of taking skins. And actually Native Americans were actually skinned, and their skins were actually used for products, such as wallets and other kinds of things that were sold.
PAGEWell, that's very disheartening. Let's go to John in Columbia, Md., who's calling us. John, hi. You're on the air on "The Diane Rehm Show."
JOHNThanks so much for taking my call. And I don't even get to tell Diane Rehm how much I love her and her show, but it's all good. It's all good. My comment is -- or a question is I don't know why, you know, I guess my question is Indian still -- the term Indian still being used? I find that very offensive. You know, I've -- if I was a person from India or a Native American, you know, I'd be every offended on that term. So if you could answer that question, I'd appreciate it.
PAGEWell, let's ask Jackie that. Is the word Indian offensive?
PATAYou're entering into another one of our internal conflicts, which is, you know, obviously we weren't Indians until Columbus said we were Indian. But the challenge to us is that, in the legal framework of how most of our laws are recognized dealing with our relationship with the federal government, it uses the term American Indians and Alaska Natives. And that is the legal description for so many of our laws. And so we've -- I'm not saying that we've accepted that, but, across the board, it is an identifier.
PATAMost tribes use their own terms to identify themselves, which makes it harder when you have 566 tribes in the U.S. that are recognized, not even counting the unrecognized tribes. And so having that, you know, identifier, American Indians and Alaska Natives, and now Native Hawaiians, is the legal terminology.
PAGEWell, Christine Farley, the Redskins owner says they'll appeal this decision and that they expect to prevail on appeal as they did in the previous case. Are they likely to win on appeal or will this ruling likely stand?
FARLEYI don't think they're necessarily likely to win on appeal. There are some things that have changed. I've mentioned already they lost the defense that they won on -- they ultimately won on, which was the delay. The other change is that there's been a jurisdictional change written into the law. So they're not going back to the same court that they won in last time. They have to go to a different court.
FARLEYAnd they may face additional arguments about jurisdiction in that court versus the court which should hear appeals from the Trademark Office, and that's the federal circuit that I mentioned had already -- has just recently decided a disparaging case. And finally, this new decision, unlike the decision in 1999, is exceedingly careful about being specific about the evidence that is before it and how the evidence supports its conclusion that this term would be deemed disparaging to a substantial composite of Native Americans during that relevant time period.
PAGESo lessons learned from that previous case when they were overturned.
EASTERBROOKAnd the plaintiffs in this -- this time around get a different judge than the plaintiffs of the first time. The previous judge was a lifelong Washington Redskins season ticket holder. And this time around it's a little different.
PAGEI'm Susan Page. And you're listening to "The Diane Rehm Show." Well, Bruce, do you think this case will stand up on appeal or do you think the Redskins are likely to win?
FEINWell, you have to look at -- there's constitutional issues and then there's whether this falls into the statutory framework that would justify a conclusion this is disparaging. Now, there's a term called avoidance of constitutional questions where you interpret any ambiguities in evidence in law to avoid confronting a serious First Amendment issue. I think there's at least a substantial probability this will be reversed on appeal. Even this whole idea of disparagement, the court -- the trademark court said, well, 40 percent or maybe a third of the Americans found that offensive.
FEINIt seems a bit odd that if you're trying to define a term like disparaging, you take the minority viewpoint as finding it disparaging and say it trumps the majority viewpoint which doesn't find it disparaging. So I think there are very, very serious problems, legally, on appeal here.
PAGEYou know, we had an emailer, Katie, writing us from Maryland, who said she looked up in four dictionaries, dating back to 1976, the definition of redskins. She said all of them call it an offensive term. They call it slang, often disparaging and offensive. "I have never seen a dictionary definition which defines it as a term of respect." Well, let's go to Molly. She's calling us from Melbourne, Fla. Molly, hi.
PAGEPlease go ahead.
MOLLYYes. I was calling about the Redskins and the possibility that they might consider changing their name. And I thought perhaps a good name for them that would be reflective of the ownership attitude and also strength and also strength of rebellion and such. And I suggest the name Renegades.
PAGEThe Washington Renegades. OK.
PAGEMolly, thanks very much. We've also gotten a tweet from Roger, who suggests they call themselves the Washington Deadlocks. Other suggestions that we've gotten on our Twitter account and on Facebook are the Pigskins. That would be a pretty minor adjustment. Right? The Warriors. The Washington Monuments, so lots of ideas.
FEINYeah, Washington Narcissists, I think, would be apropos for the population here then.
EASTERBROOKWell, and Tony Kornheiser has always had the best line about this. They should keep the name Redskins, but change the logo to a bowl of potatoes.
PAGESo we laugh about that, but, yet, of course, it is a serious issue. And I -- Gregg, you said that you're 100 percent sure this name is going to be changed one way or another.
EASTERBROOKOf course, yeah.
PAGEJackie, what's your prediction? Do you believe that this is on its way to being changed? Or do you think this'll be a debate we might be having in another five years or 10 years continuing?
PATAI think we are well on our way of having the name changed. I think public opinion has, you know, as ground swell, it's growing. And, you know, at some point it will become a -- there'll be a financial need to do so. But I just think that it's just becoming more and more less acceptable as people are educated and understand, you know, the origin of the term and how it just makes Native Americans feel today and for our younger generation.
PAGEBruce Fein, how about you? Do you think that this -- in five years, in the foreseeable future, this name will be changed, either because of financial reasons, political pressure or whatever?
FEINNo. I think we'll still have this issue around 10 years from now.
PAGETen years from now, it'll still be called the Washington Redskins?
PAGEAnd what about you, Christine? What's your sense of how this is unfolding? What do you think is ahead on this debate?
FARLEYWell, if there are appeals, those appeals could last easily another decade or two. This has been litigated since 1992. But I expect there to be a change before the litigation dies because I think part of the benefit of this litigation is it is putting this issue on the front page. People are discussing it more, thinking about it more, learning more about it. One of the callers mentioned that she did a study of dictionaries. That was one of the pieces of evidence that, since 1986, no dictionary uses this word without saying it's disparaging.
PAGEI want to thank our panelists for being with us this hour. Gregg Easterbrook, Christine Farley, Bruce Fein and Jackie Pata, thank you so much for being with us on "The Diane Rehm Show." I'm Susan Page of USA Today sitting in for Diane Rehm. Thanks for listening.
ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Denise Couture, Susan Casey Nabors, Rebecca Kaufman, Lisa Dunn, Danielle Knight, and Alison Brody. The engineer is Toby Schreiner. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts and podcasts. Call 202-885-1200 for more information.
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