Steve Russell: Free speech protects jerks like NFL team owner

The American Civil Liberties Union has filed an amicus curiae (“friend of the court”) brief in the federal court appeal of the U.S. Patent and Trademark Office decision to cancel the trademark protection of Dan Snyder’s Redskins team name for violation of the Lanham Act’s prohibition of protecting marks that are “immoral” or “scandalous” or “disparaging.” I haven’t had this much disagreement with good people since the ACLU defended the Nazis getting a parade permit in a community with lots of Shoah survivors.

“Redskins” is certainly immoral, and it’s scandalous that public disparaging of Native peoples is still practiced in 21st century. There’s no doubt in my mind that the racist trademark of the Washington team violates the Lanham Act. The problem is, for those of us who take the First Amendment seriously, the Lanham Act is unconstitutional.

Therefore, a principled position is that as long as the Lanham Act stands as the law, Snyder should lose the monopoly opportunity to profit from disparaging Indians. This begs the question whether the Lanham Act’s power to cleanse public discourse should stand. It should not. However, recognizing that the courts are unlikely to strike down this prohibition of “immoral” speech, Indians should have the same benefit of the law that any other group might claim.

This, like all civil liberties cases, is about how much power we should concede to government, not about the conduct the government is trying to sanction. Naming Dan Snyder the worst team owner in sports (a stiff competition), Rolling Stone commented that Snyder “has marshaled every resource of the rich white asshole invoking tradition to defend the indefensible,” referring to the racial slur.