In a blow to freedom of speech, the Trademark Trial and Appeal Board (TTA) of the US Patent and Trademark Office (PTO) has decided to eliminate the trademark protection of the NFL's Washington Redskins team.
Every other NFL team, and practically every other team of any consequence in America, has trademark protection. But if this ruling is allowed to stand, the Washington Redskins, one of the most valuable franchises in professional sports, will not.
A 1946 law allows for refusal of a trademark protection request if it, “Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” However, the US Patent and Trademark Office's decision to remove the Washington Redskins’ trademark is an example of selective enforcement to suit political ends.
Numerous other sports teams with names or logos that can cause offense have been granted trademarks, such as the Chicago Blackhawks, Florida State Seminoles, and Cleveland Indians. TIME found that 450 companies have Native American Mascots protected by U.S. trademarks.
A market economy relies on the rule of law. Law is supposed to be consistently applied, not selectively enforced. This principle has been forgotten as political pressure has grown. Recently, 50 Democratic senators signed a letter urging the commissioner of the NFL, Roger Goodell, to force the owner of the Redskins, Daniel Snyder, to change the team’s name.
The relationship between intellectual property of verbal content and speech is already highly nuanced. But even without analyzing the differences thereof, we can easily infer that the right to speech can be waived if this right is used for purposes that are perceived to be racist—or any other purposes the government deems “immoral” or “scandalous.”
Offensive speech is just that—offensive. Social norms and market forces have a beneficial tendency to limit offensive speech without the government setting itself up as the arbiter of acceptable and unacceptable speech. That is precisely the purpose of the First Amendment. But the PTO appears to have a different view of the First Amendment, and it appears that view offers no meaningful limits to government restrictions on speech.
Yet this decree goes even further. The PTO has ruled that a basic right, the right to property, can be waived. In this case, the right to intellectual property of verbal content has been waived because it is considered racist by certain unelected bureaucrats. There is no limitation to this use of such government authority. Licensing of products such as spectrum can also be waived.
The PTO's Redskins ruling is an extraordinary expansion of government authority to limit speech by choosing which intellectual property will be protected and which will not. The PTO gains its self-proclaimed legal authority at the expense of rights specifically reserved for the American people and not the federal government under the First Amendment.
Offensive speech is hateful and doomed to collapse in the crucible of competing ideas in a free society. But when the government chooses for us the boundaries of offensive speech, it is not just offensive speech that is limited, but the very premise of speech itself.
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