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Free Speech Protects Even Jerks Like Dan Snyder and OU Racists

The American Civil Liberties Union has filed an amicus curiae (“friend of the court”) brief in the federal court appeal of the U.S. Patent and Trademark Office decision to cancel the trademark protection of Dan Snyder’s Redskins team name for violation of the Lanham Act’s prohibition of protecting marks that are “immoral” or “scandalous” or “disparaging.” I haven’t had this much disagreement with good people since the ACLU defended the Nazis getting a parade permit in a community with lots of Shoah survivors.

“Redskins” is certainly immoral, and it’s scandalous that public disparaging of Native peoples is still practiced in 21st century. There’s no doubt in my mind that the racist trademark of the Washington team violates the Lanham Act. The problem is, for those of us who take the First Amendment seriously, the Lanham Act is unconstitutional.

Therefore, a principled position is that as long as the Lanham Act stands as the law, Snyder should lose the monopoly opportunity to profit from disparaging Indians. This begs the question whether the Lanham Act’s power to cleanse public discourse should stand. It should not. However, recognizing that the courts are unlikely to strike down this prohibition of “immoral” speech, Indians should have the same benefit of the law that any other group might claim.

This, like all civil liberties cases, is about how much power we should concede to government, not about the conduct the government is trying to sanction. Naming Dan Snyder the worst team owner in sports (a stiff competition), Rolling Stone commented that Snyder “has marshaled every resource of the rich white asshole invoking tradition to defend the indefensible,” referring to the racial slur.

The ACLU’s blog post announcing their position on the government overreaching its authority spoke similarly in a headline directed at Snyder: “You’re not wrong, you’re just an asshole.” The Patent and Trademark Office has no more business policing the content of speech than the U.S. Attorney, and to the extent the Lanham Act purports to confer that power, it’s unconstitutional.

The demise of part of the Lanham Act might not be the catastrophe for commerce some would predict. Indians, not having thought to register their tribal names as trademarks, are on the wrong end of quite a bit of trademark law and policy. You don’t have to think about that for very long to understand why a Cherokee considers the law of trademark a sore spot second only to the law of land tenure.

I object to people who are not Cherokee profiting from the use of the name (this means you, Jeep) but the First Amendment says they can call their product, and Snyder can call his football team, whatever they please.

A lawful way out of this box would be to do away with government protection of trademarks and rely on the common law tort of “passing off,” which means piggybacking on the money someone else spent to establish a brand by causing confusion among consumers. In the case of the Redskins, nobody is likely to be confused about who the racists are.

The common law tort was inadequate protection and the result of relying on it would favor big business over mom and pop even more than the current regime. So I don’t look for the Lanham Act to go anywhere, but if the Lanham Act emerges unscathed and revocation of Redskins is sustained, then Snyder still does not have to change his racist mark. He just loses his monopoly on it, and I can think of some ways Indian activists could go to town on that. Hint: there are excellent artists among us.

In a related action – the relation being the inconvenience of the Bill of Rights – Oklahoma University President David Boren expelled (so far) two students identified among the busload of idiots who starred in a viral video chanting their approval of racism and lynching. Boren wrote that the expulsions were for “a racist and exclusionary chant which has created a hostile educational environment for others.”

It sounds like a commendable action by OU, but I can’t find the part of the free speech guarantee in the First Amendment that excepts “racist and exclusionary” words that create “a hostile educational environment.”

So, these clowns on the bus are making “a hostile educational environment” when they are roundly and publicly denounced by the president of the university? Are there other places where the policy preferences of students get to trump the OU administration?

Looking at these expulsions as the bad law that they are, it matters that OU is a public university. After all, there are private universities that purport to require students and faculty to acknowledge Jesus Christ as the Son of God and savior of humankind. Sounds a lot like “there is no God but Allah and Mohammad is his Prophet.”

The purpose of a university education is to give students the tools to sort out questions of both morality and propriety, not to memorize lists of acts that have been declared halal (permitted) or haram (forbidden). Racist speech, in light of the university’s mission, must be makruh (discouraged but not punished).

Sorting by Islamic categories, I’m taking rhetorical advantage of the prejudice against Muslims that is all over our public discourse. Is that wrong? Note that I’m not disparaging Islam or Muslims. I’m pointing out the symmetry between what they do as a matter of faith and what we are being asked to approve as a matter of public policy. I’m saying that our mullahs are no better than their mullahs. This means you, David Boren, and you should know better than how you are acting.

Students should not refrain from racist speech merely because Boren, their mullah, says so. This is called ipse dixit in a list of logical fallacies and to any university teacher it should be called anathema.

Even assuming racist speech is haram, there’s a matter we call due process of law that is something OU or any public institution owes students before kicking them out. Whoa, Russell, the bad conduct was on video. What’s the purpose of the basics of due process, notice and a hearing?

The purposes are that (1) not all video presents the full truth of what happened in proper context and (2) a person who has in fact been guilty of bad conduct has the right to offer an excuse. It is not rational to punish every violation in exactly the same way, and that applies in spades to speech codes because speech cannot have meaning without considering context. My teaching of some civil rights cases is littered with nigger.

Speaking of speech codes, it’s also fundamental to due process that you have notice that your act is wrong before you commit the act, and this points up the idiocy of trying to be the idea police by acting as the speech police. The effort inevitably degenerates into list making, the silliness of which is hard to exaggerate.

The alternative to list making is “I know it when I see it,” and we are back to governing our conduct according to the word of mullahs. I suppose that’s an attractive idea if you or somebody just like you gets to be the mullah. How many Indians do you know who can make that cut?

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.