The American Civil Liberties Union (ACLU) is siding with Washington Redskins owner Daniel Snyder in his trademark battle against the federal government — but only to a point.
The ACLU this week said the government violated the Constitution when the U.S. Patent and Trademark Office ruled to cancel a number of trademarks bearing the team’s name because it found the term to be disparaging to Native Americans.
{mosads}Still, the civil liberties group was quick to distinguish its legal argument from its overall view of the Redskins name. The group’s blog post announcing the legal brief was titled, “You’re not wrong, you’re just an a**hole.”
“The question of whether certain speech is distasteful is entirely distinct from the question of whether the government can constitutionally disadvantage it for that reason,” the ACLU wrote in a friend-of-the-court brief, written in favor of the team’s appeal.
A section of trademark law allows the government to restrict trademarks that are immoral, scandalous or disparaging. The ACLU urged the court to strike down the provision, arguing it has led to confusing and unclear standards.
“By authorizing the government to deny registration of certain marks because of a viewpoint-based determination about the character of expressive speech, [the provision] violates the First Amendment,” the ACLU wrote.
Last June, an independent board at the Trademark Office ruled to cancel six Redskins trademarks. The Redskins quickly appealed the decision and expressed confidence in a win. The ruling will not go into effect until the court comes down on the issue.
Democrats in Washington have pressured the team to change its name. Snyder has ruled it out, and denies that the term is disparaging.
The ACLU also argued that canceling the trademarks might not actually stanch the spread of the team’s name. While a number of legal protections would be taken away, the team would still be allowed to use the name.
“Canceling the Washington team’s trademark may not even be effective, because canceling a trademark doesn’t prevent the team from using it. It does, however, make it easier for other people to disseminate it. So the Trademark Office decision in this case might result in even more use of a distasteful term – not less,” Esha Bhandari, an ACLU attorney, wrote in a blog post.