First Amendment Law Professors Back Redskins’ Argument on Appeal

On October 29, 2015, a notable group of First Amendment law professors filed an amicus brief with the Fourth Circuit, supporting the Redskins’ argument that Section 2(a) of the Lanham Act is in violation of the First Amendment.

The case, Pro-Football, Inc. v. Blackhorse, is currently pending in the Fourth Circuit Court of Appeals where the Redskins have been fighting to reclaim their trademarks that were cancelled by the U.S. Patent and Trademark Office (PTO) last year. The PTO’s revocation of the marks, which was later upheld by U.S. Judge Gerald Bruce Lee in federal court, was grounded on the basis that the team nickname was disparaging against Native Americans in violation of Section 2(a) of the Lanham Act. Last week, the Redskins appealed to the Fourth Circuit, arguing that Section 2(a) of the Lanham Act unconstitutionally interferes with the protections afforded by the First Amendment. In its brief, the NFL franchise vehemently opposes the notion that the PTO’s action is exempt from First Amendment scrutiny on the basis that registered trademarks are government speech.

It seems as though the Redskins are not alone in their reasoning. Two prominent First Amendment scholars—Rod Smolla and Floyd Abrams—filed an amicus brief supporting the team’s position. The amicus brief claims that the section of the Lanham Act “is a brazen exercise in viewpoint discrimination.” The brief goes on and provides that the section “exists to discriminate against expression perceived by the government to be disparaging and offensive.” The brief outlines the fact that the traditional strict scrutiny standard under the First Amendment prevents the government from burdening speech based on its content or viewpoint, and as such, speech cannot be penalized merely because it is found to be offensive or disagreeable.

The scholars noted—and discredited— three counter arguments which would exempt the statute from the ordinary scrutiny standard forbidding viewpoint discrimination. First, the amicus brief argues that registrations should not be labelled as government speech as a means to hurtle First Amendment protections. The scholars provide, “[t]rademark registration is similarly outside the doctrinal definition of government speech. Trademarks are understood in society as the identifiers of private speakers. Trademarks are not created by the government, aligned with the government, or functionally used as ‘government IDs’ or platforms for government expression . . . .”

Additionally, the scholars argue that the government cannot use trademark registration as a government benefit in order to engage in viewpoint discrimination of speech. Smolla and Abrams note, “[t]he doctrine of unconstitutional conditions bars the government from denying benefits to speakers on the condition that those speakers surrender First Amendment rights they would otherwise enjoy.”

Finally, the scholars argued that the regulation of disparaging trademarks cannot be defined as the valid regulation of commercial speech. The brief points out that the Redskins’ mark should not be analyzed under commercial speech because, “there is no commercially related purpose underlying [Section 2(a)’s] probation on disparaging, scandalous, or contemptuous marks.” Smolla and Abrams go on to argue, “[i]t is entirely the non-commercial elements of the communication that [Section 2(a)] regulates, the elements deemed by the government to be culturally and politically offensive.”

Regardless of the outcome, the Redskins have presented an intriguing First Amendment argument that has captured the attention and support of notable scholars in the field. The opposition’s brief is due to be filed in January.

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