The Supreme Court of the United States may take up two cases appealing for the right to trademark words seen by some as slurs. But it brings about such odd bed-fellows: One case involves the Asian-American rock band The Slants. The other, the Washington NFL football team which wants to trademark its mascot name which has been criticized as being derogatory to Native Americans.
When it comes to slurs and their trademarking, I believe the First Amendment rules the process. That means more speech, but also more protests; a deeper consideration of people's intent as well as government limitations on hate.
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I have fought racism throughout my career as a journalist, writer, and TV and radio host. But my free speech urges compel me to defend the rights of the Washington football team just as I would the Ku Klux Klan. Let the team use its officially racist name for as long as it desires, and let them face the continued wrath of protesters’ loud cries denouncing the team’s racism.
More speech is always better than less. Government regulation is another matter. I’m all for protecting the First Amendment. I’m just not for protecting a team’s exclusive right to profit from ignorant racism.
Grant them a trademark? Why reward the team’s hate even more?
But the United States Patent and Trademark Office's interpretation of the law has been inconsistent in determining what phrases should not be registered. For example, The Slants are, like many activists, re-appropriating a negative word or phrase to essentially disarm its use by racists. The Washington football team just wants to continue to profit from an offensive name.
By denying registration to both, the U.S. Patent and Trademark Office has created a ridiculous situation where selfish re-appropriation is equated with re-appropriation for legitimate civil rights reasons. Using a slur to defuse the power of racists is quite different from exploiting a slur for business reasons. A more consistent interpretation of the law would allow the government to deny trademarks on disparagement grounds, while keeping the right to free speech intact.
A version of this originally appeared in the New York Times feature Room for Debate.
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