The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As we've noted before (see here and here), the D.C. federal District Court recently affirmed a ruling by the Trademark Trial and Appeal Board canceling federal trademark registration for the name "Redskins," on the grounds that it violates Section 2 of the Lanham Act, which prohibits registration of trademarks containing "immoral, deceptive, or scandalous matter, or matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute."
Many people (including me) have long believed that this statutory provision is, on its face, a violation of the First Amendment; the federal government should not be doling out benefits (such as trademark protection) based on whether or not it thinks you have "disparaged" an institution or a "belief" or a national symbol.
Happily enough, the en banc U.S. Court of Appeals for the Federal Circuit agreed, striking down the provision as unconstitutional in a decision (In re Tam) handed down at the end of last year (accompanied by a wonderful, First Amendment-protective opinion authored by Judge Kimberly Ann Moore, posted here) (and currently pending certiorari in the Supreme Court).
There are many reasons that the government doling out trademark protection based on such determinations is a bad idea, not least of which is that the most basic tools of legal inquiry are remarkably—almost laughably—ill-suited for answering questions like the one simple question on which this entire case turns: Does the term "Redskins" as used by the D.C. football team "disparage" Native Americans or "bring them into contempt," or not?
Have a look at the 177-page—really!—opinion by the Trademark Trial and Appeal Board (posted here), and follow that up with a perusal of the merely 70-page District Court opinion (here) if you want to get a sense of what I mean. That's about 250 pages of prose (not to mention hundreds or thousands of hours of work by highly skilled professionals) to determine whether, by a "preponderance of the evidence," the "Redskins" mark disparages Native Americans.
There's the rub—courts need "evidence" to weigh in order to make this determination. What might that "evidence" consist of, exactly? Many, many people have opinions on the question—sociologists, linguists, cultural historians, Native Americans themselves, non-Native Americans, politicians, football fans. . . . A large fraction of those 250-odd pages is taken up with a discussion of those opinions, which can be easily summarized: Some people think the use of the word is disparaging, others think it isn't.
That is, really, about all one can say on this "evidence." Which side has the "preponderance" of the evidence? I can't even imagine how one would decide that, or what that might mean. To "weigh" this evidence, one has to have some idea of what makes one piece of evidence persuasive and one piece of evidence not persuasive—but the court has absolutely no basis for doing that. To compare Survey 1 with competing Survey 2, or Expert Linguistic Opinion 1 with competing Expert Linguistic Opinion 2, one has to know something about surveys, and about survey design, and about linguistics—and judges, simply, haven't the faintest idea what they're talking about (nor should they be expected to have the faintest idea what they're talking about) when it comes to matters like that. So they end up saying little more than: We just think one side is right and one side is wrong, without anything that really could be called "legal reasoning." And 250-odd pages of dense prose does little more than obscure the fact that there's really nothing there; the emperor has no clothes at all.
Now into this mix comes the news this past week that a new Post poll has found that 90 percent of Native Americans don't find the use of the term "Redskins" as the name of the D.C. team to be offensive. Oh, dear.
You might think this disposes of the matter—but unfortunately it does not. As yet another indication of how peculiar this inquiry is, it turns out this is largely irrelevant to the question presented in the case, where the court is not trying to determine whether the term is currently disparaging but whether it was disparaging on the date the marks were first registered (i.e., as of 1968, 1972, 1977, and 1990).
And to the extent it might be relevant, how much "weight" should this new evidence be given? Is the result "correct"—does it accurately reflect the views of 1.8 million Native Americans? Are you sure? Could a judge be sure? Based on what?