Washington, D.C.’s National Football League team uses a racial slur for its name. Several Native Americans brought a lawsuit to cancel the team’s trademarks, and the U.S. Patent and Trademark Office’s tribunal determined that the team’s marks are indeed likely to “disparage” native peoples and therefore canceled its registration under Section 2(a) of the Lanham Act. Displeased with this ruling, the team, with help from the American Civil Liberties Union, asked a federal judge to strike down key features of the law on the grounds that they violate the First Amendment.
The Department of Justice recently intervened in the lawsuit and filed a brief supporting the Trademark Office. The DOJ astutely points out that the cancellation of a trademark’s registration doesn’t actually inhibit anyone’s ability to utter a single word and therefore does not infringe upon free speech. Alternatively, if the trademark law were deemed to implicate speech, courts should defer to Congress’s effort to regulate either “hybrid” speech (a mix of private and government expression) or commercial speech (speech proposing a commercial transaction). As the DOJ’s brief argues, the right to choose one’s own mark, even a derogatory one, does not require the government to put its seal of approval on that name. Nor do free-speech principles guarantee the team a profit for its use of derogatory terms. All of these are sound reasons for rejecting the NFL team’s First Amendment assault on federal trademark law.
But one argument the DOJ makes only tepidly deserves far greater emphasis: In regulating commerce, Congress has the power—and perhaps even an obligation—to confront pervasive forms of inequality. As the DOJ explains, trademark law “prevents a mistaken perception of official endorsement of insult and calumny.” Yet the power to deny state approval goes further than that: It implicates the very idea of democratic self-governance. Disparaging marks can foster corrosive cultural stereotypes on the basis of race, religion, sex, or sexual orientation. Left entirely unregulated, the market would become the engine for perpetuating, and even entrenching, illiberal values.
There is a long history of Congress enacting civil rights laws on the grounds that racial discrimination interferes with a well-functioning national economy. In fact, that is the rationale underpinning the landmark Civil Rights Act of 1964 and endorsed by the Supreme Court—that racial discrimination created impermissible obstacles to interstate commerce. When restaurants and hotels refused to serve black Americans, their illiberal business practices made political minorities in the marketplace feel unwelcome, discouraged economic transactions, and imposed unfair costs on those who had no choice but to travel.
But let’s be clear: Racial discrimination during interstate commerce involves more than simply the physical act of refusing service; it also encompasses signs, advertisements, and statements by workers signaling that nonwhite customers are unwelcome. In this sense, civil rights laws could be characterized as regulating some speech as well as conduct in the name of removing obstacles to the free exchange of goods and services.
What Congress has done in preventing the registration of disparaging trademarks is in the same spirit of our nation’s civil rights laws. Federal trademark law aims to protect producers and consumers from unfair competition, practices that drafters of the trademark act called “diversion of trade.” The use of degrading trademarks is really an illiberal business practice, one that can demoralize political minorities, dampen participation in the market, and foist unfair costs on willing buyers.
Unlike federal civil rights laws, the trademark law cannot be used to sue or prosecute someone who engages in discriminatory behavior. Nothing in the trademark act can be used by the Native American challengers to stop the team from using the name. Instead, it simply denies the federal government’s support for disparaging trademarks on the ground that they fail to welcome all members of the public to engage in commerce.
Still, what the law accomplishes is both modest and essential to our system of government. In a complex, pluralistic democracy, the state must have the power to distance itself from odious speech, even if it protects a private citizen’s right to express such views. As political theorist Corey Brettschneider explains, the state is obliged to use the power of democratic persuasion, including the design of government programs, to “criticize views that conflict with the ideal of free and equal citizenship.” That’s the best, affirmative justification for what the trademark law accomplishes in balancing the needs of commerce and the ideals of government.
When the Trademark Office rejects the registration of a trademark because it is disparaging, it is ensuring that further use of that mark in commerce is purely private—neither validated nor supported by the federal government. In this case, the NFL team can continue to use its current name and logos if it so chooses, but it would have to do so without the government’s endorsement.
Were the state to ban the use of racist terms outright, it would most likely violate the First Amendment. In 1993 a federal district judge in Brooklyn struck down a law that prohibited the use of “Crazy Horse” on alcoholic beverages. Citing free-speech concerns, the judge stressed that the law barred all individuals and entities from using the mark. At the same time, the state is allowed to express its view that the use of racist terminology and imagery in the marketplace is harmful to political minorities, creates obstructions to interstate commerce, and should be abjured.
To see the importance of this power, consider the impact of thrusting the First Amendment into trademark law. If the Washington NFL team’s position were to prevail, the Trademark Office would be compelled to approve and support all manner of racial epithets, sexually derogatory terms, and religious slurs as legitimate business practices. Robbed of discretion, the Trademark Office would have to register all manner of racist, sexist, or otherwise scandalous marks such as “Heeb,” “Dego,” “Slants,” “Wild Injun,” “Knigga,” “Black Tail,” “Shank the B!t@h,” “You Can’t Make a Housewife Out of a Whore,” and “Jesus Jeans”—all of which are taken from actual trademark applications.
Official sanction of these terms would, in DOJ’s estimation, “magnify the harm of the disparagement.” In the parlance of political theory, it would make the federal government a party to deeply inegalitarian ideas, promote their widespread usage in commerce, and prop them up in public debate.
Two lessons can be drawn from the Supreme Court’s previous equal protection decisions. First, the government has a compelling interest in avoiding discrimination. By withdrawing the imprimatur of the state from degrading marks, the trademark law ensures that the federal government denies private parties the rule of law as a mechanism for promoting inequality.
Second, the Supreme Court has increasingly emphasized the importance of eradicating state-sponsored stereotyping—namely, cultural practices that aren’t easily described as overtly malicious, but nevertheless foster damaging attitudes about sex roles and racial or religious identity. In U.S. v. Virginia, Justice Ruth Bader Ginsburg defined pernicious stereotypes as “overbroad generalizations about the different talents, capacities, or preferences” of the social groups that make up American society. A growing social science literature establishes that demeaning terms foster inequality by perpetuating outdated and erroneous stereotypes, which then operate—to use Ginsburg’s words—as “artificial constraints on an individual’s opportunity.”
The NFL team can choose to define itself by reference to a racial epithet. It has the constitutional right to do so. At the same time, the government is not obliged to endorse that racial slur, and in fact possesses the authority to denounce the team’s practice as inegalitarian. Both messages—critical to robust debate in a well-ordered democracy—are delivered by the Trademark Office’s denial of registration of the Washington football team’s trademarks.