On March 6, the American Civil Liberties Union [ACLU] sided with the Washington Redskins in an amicus brief it filed on behalf of the $1.6 billion corporation as it sues five Native American activists of much meager resources.
In the case Pro-Football Inc. v. Amada Blackhorse et al., the ACLU defends the disempowerment and dehumanization of Native peoples and their right to suit the activists who have challenged its name in an effort to silence and intimidate them, ironically, through a questionable interpretation of the First Amendment as it pertains to patents and trademarks.
Those five Native American activists who have put themselves at risk of suit and intimidation are the real actors whose right to speech are in need of protection, not the $1.6 billion corporation the ACLU defends.
For the ACLU, denying the Redskins its racist trademark is the same as coercive denial of speech and they say nothing on the Redskins own tactics of intimidation on the five activists.
This is an unfortunate position for the ACLU because it sides with a powerful corporation worth $1.6 billion over much less powerful Native American plaintiffs in a manner that is out of step with the real benefit of the ACLU’s work, protecting less powerful groups from powerful ones such as the U.S. military or national and local law enforcement.
The ACLU has been a stalwart defender of civil rights in these areas, and their work for victims of U.S. War on Terror, such as the unfortunate souls still held indefinitely at the Guantanamo Bay prison, is exemplary.
But in the case of Native Americans, the ACLU finds that it’s more important to protect a large corporation’s right to make a profit with the use of dehumanizing characterization of indigenous people than it is to protect what is a larger moral right of indigenous people not to feel continually threatened, intimidated and made into mockery in lands we’ve inhabited before the First Amendment even existed.
The ACLU warns of “the government” clamping down on speech in the form of the U.S. Patent and Trademark Office (USPTO) revoking the team’s registered trademark because of its offensiveness. The ACLU equates trademarking with freedom of speech and the USPTO’s denying of a patent with coercion.
The amicus brief quotes the findings of a 1950 case that suggest, “under some circumstances, indirect ‘discouragements’” such as denying a patent “have the same coercive effects” as “imprisonment, fines, and injunctions.” In other words indirect financial burden in the exercise of speech through any government institution, whether the police confiscate your printing press or USPTO denies a patent because of its blatant racism, for the ACLU the effects are all the same.
But the operative phrase they quote and seemingly ignore is that only “under some circumstances” (my italics) are these tactics the same as coercion, certainly not under all circumstances. Clearly this is not one of those circumstances.
We are not talking about a small start up company satirizing a much bigger competitor. We are talking about an organization in the heart of the U.S. federal capital that Forbes values at $1.6 billion and that refuses to change its racist name under any circumstances, living little recourse for Native activists.
In the practice of speech it is important to think about who are the actors and what are the resources at their disposal. The guarantee of freedom of speech that is outlined in the U.S. Constitution was meant to protect much less powerful individuals from the power of the government’s institutions to silence them. But when the First Amendment was passed corporations weren’t as powerful as they are today. Now they have more resources than some governments and reflect the inequality of wealth Oxfam International documented in a recent report that showed half of global wealth is owned by one percent of the population.
In this environment Native American tribal governments or individuals have little recourse but to appeal to progressive federal laws and institutions, including laws that allow for the USPTO to revoke a trademark based on its offensiveness. Again, this does not prevent Dan Snyder or anyone associated with the Redskins from saying the word “redskin” in public, print or any other form of speech. And we should reject the claim that making the $1.6 billion Washington Redskins change their name is a financial burden on par with coercion.
The ACLU needs take more nuanced stances on First Amendment issues as they pertain to patents and trademarks and should also take into consideration the relative financial power of the individuals, groups or corporations under question. Ultimately, trademarks are already sketchy intrusions into the larger question of “freedom of speech” because their premise is to award private individuals, groups, or corporations the rights to words and associations and prevent others from using it.
The USPTO’s denial of the Redskin’s trademark simply prevents the company from making money on the dehumanization of Native Americans. In a larger sense Native American people and culture are continually pillaged. Cultural appropriation is a constant threat to Native peoples and undermines are collective sense of identity. Our images are bought and sold in crass forms everyday.
The ACLU has skirted the larger moral question of the disempowerment and dehumanization of Native peoples in their rigid, absolute and questionable interpretation of the First Amendment as it pertains to trademarks. The activists challenging the name are the real actors in need of protection, not the Washington Redskins.
Andrew Curley, Navajo, is a Ph.D. candidate in the Department of Development Sociology at Cornell University. Curley studies coal and development, climate change and sovereignty in the Navajo Nation.