Does The Redskins' 'Free Speech' Claim Hold Water?

Is this logo free speech? Mark Tenally/AP hide caption

Is this logo free speech?

You're on the Internet, which means you're never more five seconds away from someone claiming you squashed their First Amendment rights by, say, blocking them on Twitter.

Repeat after me: the First Amendment prohibits citizens' speech from being infringed upon by the government.* But because the universe delights in dark humor, it turns out that one recent, obnoxious claim about free speech violations might have some real legs.

The latest skirmish in the Washington Redskins' team name controversy involves the legal status of the team's trademark. As my colleague Kenya Downs wrote last month, the U.S. Patent and Trademark Office (USPTO) can deny or rescind a trademark if it is "disparaging of persons, institutions or national symbols." Citing that rationale, the office canceled six of the Redskins' trademarks last summer.

Last week, the Redskins filed a lawsuit saying the office violated their right to free speech. The team's lawyers argue it was singled out "for disfavored treatment based solely on the content of its protected speech, interfering with the ongoing public discourse over the Redskins' name by choosing sides and cutting off the debate. This the U.S. Constitution does not tolerate."

Mark Joseph Stern, who covers legal issues at Slate, called this "a desperate move by a cynical man to maintain a monopoly on an offensive ethnic slur," before adding, "It is also probably correct."

Stern said the the USPTO's rules on offensive trademarks are can appear arbitrary and ideologically driven for instance, when the office rejected the lesbian motorcycle club Dykes on Bikes application for a trademark.

He explains why this is a problem:

"A company whose trademark is revoked is almost certain to change its namemeaning trademark revocation is, at bottom, government coercion of speech...

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Does The Redskins' 'Free Speech' Claim Hold Water?