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Supreme Court: Yes, You Can Trademark Disparaging Racial Slurs Like R-Word

Native Twitter was ablaze with frustration June 19 following the release of the Supreme Court’s decision that a federal law prohibiting the trademark of disparaging racial slurs is unconstitutional.
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In a significant blow against the fight to change the Washington NFL team name, the Supreme Court ruled June 19 that a federal law prohibiting trademarks of disparaging racial slurs is unconstitutional and violates free speech provided by the first amendment. The decision comes in response to a case concerning “The Slants,” an Asian-American band that has fought in court to keep its controversial name. The Supreme Court struck down the Lanham Act in particular, which denied trademark protection of any word or name that disparaged someone, living or dead. Supreme Court Justice Samuel Alito wrote in his opinion that “trademarks are private, not government speech.”

“(It’s) far fetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently,” Alito wrote.


Amanda Blackhorse, a lead plaintiff in the ongoing case against the Washington NFL team’s use of a racial slur and the four other plaintiffs, said in a joint statement sent to Indian Country Media Network that they “are disappointed with Supreme Court’s ruling that Section 2(a) of the Lanham Act is unconstitutional, and we respectfully disagree with the Court’s decision.”

Regardless of the Supreme Court’s ruling, “the term ‘redskin’ disparages Native Americans,” the statement reads. In 2014, the U.S. Patent and Trademark Office canceled the Washington NFL teams’ trademark of the word ‘redskin,’ ruling the term is disparaging to Natives, but that decision was later overturned.

Change The Mascot, a group of Natives and allies advocating for the repeal of the Washington NFL team's name, said the ruling does not change the definition of the word ‘redskin’ or its impact on Natives.

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“This is an issue we have always believed will not be solved in a courtroom, and this ruling does not change some very clear facts. Washington's football team promotes, markets and profits from the use of a word that is not merely offensive – it is a dictionary-defined racial slur designed from the beginning to promote hatred and bigotry against Native Americans,” group leaders National Congress of American Indians Executive Director Jackie Pata and Oneida Nation Representative Ray Halbritter said in the statement. (Indian Country Today Media Network is wholly—owned by the Oneida Indian Nation.)

They added that the ruling does not change the fact that empirical research has shown that Indian mascots harm the mental health of youths. “And the problems caused by the R-word epithet are still very real and present today. Social science research has shown that its continued use has devastating impacts on the self-image and mental health of Native Americans, particularly children,” the statement reads.

As a result of the new social science concerning the detriments of Indians mascots on children, in 2015, the American Psychological Association called for the immediate “retirement” of Indian mascots.

“These mascots are teaching stereotypical, misleading and too often, insulting images of American Indians,” former APA President Ronald F. Levant wrote. “These negative lessons are not just affecting American Indian students; they are sending the wrong message to all students.”

Lisa Blatt, attorney for the Washington NFL team, told CNN the team is “thrilled” with the Supreme Court’s ruling.

“The Team is thrilled with today’s unanimous decision as it resolves the Redskins’ long-standing dispute with the government,” she said in a statement. “The Supreme Court vindicated the Team's position that the First Amendment blocks the government from denying or canceling a trademark registration based on the government's opinion.”

Native Twitter was ablaze with frustration June 19 following the release of the Supreme Court’s decision—many saying the decision stands as further example that the U.S. continues to care little for the wellbeing of Natives.