The Collision of the First Amendment, the Lanham Act, the Washington Redskins, and The Slants - Part 1

Photograph of a Washington Redskins football helmet

The First Amendment to the United States Constitution provides "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Section 2(a) of the Lanham Act provides, in relevant part, that registration upon the Principal Register of the United States Patent and Trademark Office may be refused to any trademark which consists of or comprises "matter which may disparage...persons, living or dead, instutitions, beliefs, or national symbols, or bring into contempt, or disrepute...."

The Washington Redskins are a professional football franchise. The franchise was formed on July 9, 1932, and was originally known as the Boston Braves. In 1933, to avoid confusion with the then-Boston Braves baseball team, the franchise's ownership changed the name to the Boston Redskins. In 1937, the franchise moved to Washington, D.C. and became the Washington Redskins. Many contend that the word "redskin" disparages Native Americans.

In 2006, in Portland, Oregon, Simon Young a/k/a Simon Tam founded an all-Asian American dance rock band by posting local classified ads and online ads. The group settled on the name The Slants. Many contend that the word "slant" is disparaging when used to refer to people of Asian ethnicity.

Over the past few years, the First Amendment, Section 2(a) of the Lanham Act, the Washington Redskins, and The Slants have collided in legal proceedings before the Trademark Trial and Appeal Board and various Federal Courts. This is Part 1 of a series of posts in which I discuss the various decisions born from these proceedings, through which the courts are attempting to answer some difficult questions about the intersection of trademark law and the First Amendment. Stay tuned.

Photograph by Keith Allison, avaialble for use under Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0)