Washington Redskins, Charlie Hebdo and the free speech right to be racist

In a desperate attempt to hold on to its multi-million-dollar trademark, the Washington Redskins franchise submitted legal arguments last week seeking to overturn a 2014 decision by the Trademark Trial and Appeal Board to cancel the team’s trademark because it is offensive to Native Americans. The team’s attorneys argued that denying the use of disparaging trademarks is unconstitutional under the First Amendment – in other words, there is an implied First Amendment right to not only be racist but to profit off of that racism.

While it may be true that racist slurs are protected speech under the First Amendment, the issue here of course is whether the United States Patent and Trademark Office, an agency of the federal Department of Commerce, should be in the business of handing out trademarks to private entities so that they may enjoy legal protection over those offensive brand rights. In the case of the Washington Redskins, this is not just an academic question, but one with significant financial implications. Forbes Magazine estimates the value of the Redskins brand at $214 million.

Few would argue that the government should criminalize the uttering of the “redskins” racial slur, but when it comes to granting trademarks, this is a different story. Trademark law says that the government has the right to deny a registered trademark on “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.” It was on these grounds that the government cancelled the Redskins trademark last June.

Now, Redskins lawyers claim that the trademark board’s decision unfairly singles out the Redskins “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.” In other words, “Waaaaaaaaa!!!!!”

In some ways, it’s interesting that this issue is being discussed now, just weeks after a similar debate over free speech had dominated media coverage. The parallels between the Redskins name debate and the discussions over freedom of expression following the massacre at the satirical weekly newspaper Charlie Hebdo in Paris are striking.

Just as the Redskins franchise is currently demanding rights to free speech in utilizing a patently offensive racial slur, so too did the Western world generally argue that the January 7 jihadist attack the anti-Muslim Charlie Hebdo cartoons was a brazen assault on sacred principles of free expression. Under the slogan “Je suis Charlie” (I am Charlie), Western leaders and members of the intelligentsia claimed to be taking the moral high ground in defending the rights of cartoonists, writers and satirists to offend people through their work. And much like the Redskins name debate, those who might have argued for restraint against racist and offensive speech found themselves in the uncomfortable role as free speech detractors.

But calling for respect and racial tolerance should not be considered an assault on free speech, and indeed the very fact that free speech in the year 2015 has come to be defined as the right to be racist and offensive should be a cause for concern. Freedom of speech is indeed a sacred right and a vital tool, but not necessarily for the reasons that Redskins fans and Charlie Hebdo readers may assume.

The most cursory examination of American history would make clear that it is only through the free expression of unpopular views that we ever move forward as a nation. For example, the abolition of slavery, women’s suffrage, Social Security and the minimum wage were all considered radical ideas until they were forced into the mainstream by determined dissident voices. Without the full right to exercise freedom of speech, there is no telling how long those issues would have stayed on the side lines or how long the nation would have taken to address them in a meaningful way.

Free speech in this sense is not a utopian ideal, but an essential instrument for promoting peaceful change, securing liberty for the oppressed and advancing the cause of justice for all. When it is curtailed, therefore, it is not just a betrayal of democratic principles, but a roadblock to democratic progress. The Founders understood this dynamic when they enshrined the fundamental freedoms of religion, press, assembly and speech in the First Amendment to the Constitution. They recognized these as the unalienable rights of human beings as well as essential tools of an empowered citizenry. When the right to free speech is violated, then, it is a human rights violation as well as a betrayal of the Constitution and the democracy it promises.

But when the concept of free speech is perverted and twisted into meaning some supposed right to profit off of racial slurs by compelling the government to pass out trademarks in violation of its own rules or the right to be willfully offensive towards the world’s 1.6 billion Muslims, inevitably provoking some of them into violent reactions, the free speech debate has lost its way.

This article is cross-posted at Essential Opinion.

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