In case you hadn’t heard, it’s been a big week in intellectual property. The biggest news item in the non-legal press was the Patent and Trademark Office’s decision to cancel several of the NFL’s Washington Redskins trademarks because they were “disparaging.” This review and cancellation is required by statute, and the decision is generating a fair amount of First Amendment discussion, much of it incautious. On the Diane Rehm show today, for example, Bruce Fein went completely off the rails:
“I think it's a frightening decision in some ways. Let's take the description that was given as to why it was thought appropriate for the trademark to be revoked, that it create or evoked images that were unattractive to Native American Indians. And go back to the case in 1970s where Neo-Nazis marched in Skokie, Ill. in a neighborhood composed of Holocaust survivors. And the Holocaust survivors said this disparaging to me. The whole idea of Nazism evokes all sorts of terrible things about the genocide of Jews. A Supreme Court held unanimously, well, in free speech, it's there to protect speech we hate, not speech that we love. And if you even go back to the description of this being the first nail which could be on the coffin of the use of the Redskins, it's true that the immediate economic impact on the Redskins may be marginal. But the principle established in the ruling, say, will lay around like a loaded weapon ready for use to suppress unwanted speech.”
He followed with a parade of horribles, concluding with the expected invocation of Voltaire:
“And you can go down the lot where people will find a party, a political party, is disqualified from receiving FEC matching funds because the idea of the know-nothing party conveys something very hostile to various groups in the United States. We need to go back to what Voltaire said. I may disagree with what you say, but I'll defend with my life your right to say it. The Supreme Court has repeatedly said that the remedy for ill-counseled speech is not enforced silence, but more speech.”
Other panelists tried to move him closer to the actual facts of the case by pointing out that the team was entirely free to use the name, and even to claim common law trademark protection (and thus to sue people for using the term). And that of course weakening the trademark protection would create more speech, since it would be harder for the team to stop others from using the term: the only restriction is that they couldn’t register the mark with the PTO. In other words, the analogy to an attempt to stop offensive political speech by prohibiting that speech is totally wrong.
Eugene Volokh, who is a very good libertarian-leaning First Amendment Scholar, was a lot more cautious, ultimately concluding that he thought there was a First Amendment argument to be made:
“Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination.”
First, it seems to me that Volokh is on the right topic: trademark registration basically gives the government’s imprimatur to a monopoly right, the right to the more-or-less exclusive use of an expression. In other words, trademarks themselves restrict free speech because they prevent others from using the mark (rather, they give a legal cause of action to stop others from using the mark; you don’t have to enforce your IP rights, but that’s Tesla’s decision not to enforce its patents, which I hope to blog about in a few days). In theory, this ban is only on confusing uses of the mark, but modern trademark law includes a fairly broad remedy for “dilution,” which basically means anything that associates the mark with something else can be actionable; associating a product with sex, for example, is the fastest way to get sued for “tarnishment,” one of the forms of dilution (in the you-can’t-make-this-up-department: the lead case for tarnishment doctrine is one where Victoria’s Secret successfully shut down “Victor’s Little Secret,” a sex toy shop, on the grounds that association with sex toys was bad for Victoria’s Secret’s “playful and sexy” image. Rebecca Tushnet has the right response).
In other words, the trademark registration gives the Redskins franchise the presumptive right to exclusive use of a racist term in commerce, including the right to sue those who might tarnish the brand’s image by associating it with presumptively negative things like explicit sex. Is revoking this a First Amendment issue?
My sense – and I am no First Amendment scholar – goes in the opposite direction from Volokh, and so I offer it here for consideration. It seems to me that the issue has to be framed as a question of whether one has a right for the government to subsidize one’s speech. And it also seems to me that the answer to this question is a pretty clear ‘no.’ The relevant authority would be an anti-abortion case, Rust v. Sullivan, one of the so-called “gag-rule” cases, where the government prohibited agencies receiving public money from discussing abortion with their patients. The Court addresses the subsidy issue directly:
“Petitioners contend that the regulations violate the First Amendment by impermissibly discriminating based on viewpoint because they prohibit "all discussion about abortion as a lawful option — including counseling, referral, and the provision of neutral and accurate information about ending a pregnancy — while compelling the clinic or counselor to provide information that promotes continuing a pregnancy to term." They assert that the regulations violate the "free speech rights of private health care organizations that receive Title X funds, of their staff, and of their patients" by impermissibly imposing "viewpoint-discriminatory conditions on government subsidies" and thus penaliz[e] speech funded with non-Title X monies."” [internal citations omitted]
The answer is unequivocal; with apology for the very long block quote:
“There is no question but that the statutory prohibition contained in 1008 is constitutional. In Maher v. Roe, supra, we upheld a state welfare regulation under which Medicaid recipients received payments for services related to childbirth, but not for nontherapeutic abortions. The Court rejected the claim that this unequal subsidization worked a violation of the Constitution. We held that the government may "make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds." Here the Government is exercising the authority it possesses under Maher and McRae to subsidize family planning services which will lead to conception and child birth, and declining to "promote or encourage abortion." The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other. "[A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right." "A refusal to fund protected activity, without more, cannot be equated with the imposition of a `penalty' on that activity." "There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy."” [internal citations omitted]
I don’t see how this reasoning doesn’t apply to the Redskins case. Because trademark registration confers public benefits, the PTO has chosen to value non-racist speech over racist speech, and to implement that judgment by the allocation of public funds. The PTO isn’t interfering with speech, but encouraging a different kind of speech consonant with legislative policy. The Rust Court continues that “a doctor who wished to offer prenatal care to a project patient who became pregnant could properly be prohibited from doing so because such service is outside the scope of the federally funded program;” the analogy here is that a team owner who wished to use racist speech could be denied trademark registration because such service is outside the scope of the federally-funded trademark doctrine. Here’s one more line from Rust: “the government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized. The Secretary's regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities.” The Court further clarifies that “our "unconstitutional conditions" cases involve situations in which the government has placed a condition on the recipient of the subsidy rather that on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program.” In other words, if the PTO had tried to ban the use of the Redskins brand altogether, that would have been unconstitutional.
Undoubtedly there are many issues to be dealt with here, especially for those of us who disagree with the result of Rust (upholding the gag-rule). Certainly current campaign finance doctrine complicates the boundary between speech and money. Sports mascots are also substantively complicated, as the NCAA’s prohibition on non-consensual uses of Indian names brought to light (here’s two issues: (a) fans often form their own community around the mascot, and it’s unclear the extent to which that mascot in any meaningful sense refers to any actually existing people or culture; and (b) it’s not clear who should represent a tribe: the Florida Seminoles endorsed the FSU team name, but the Oklahoma Seminoles objected. For all of this, see, e.g., this paper by Naomi Mezey. On the other hand, (c) the present case can be distinguished because “Redskins” is unquestionably disparaging in the way that “Seminoles” is not. Erin Tarver, if you’re reading, please comment!). And yes, yes, there’s a sorites problem lurking on the boundary between “disparaging” and not, but this is law, and hard cases are inevitable. But if we have to live with Rust, then I think the burden is on Daniel Snyder and Co. to explain why like cases shouldn’t be treated alike.