First Amendment Law Professors Back Redskins’ Argument on Appeal

Posted by

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.

37 comments

  1. I am the owner of JustCBD brand (justcbdstore.com) and I am currently planning to develop my wholesale side of business. It would be great if someone at targetdomain is able to provide some guidance 🙂 I considered that the most effective way to accomplish this would be to connect to vape shops and cbd stores. I was hoping if someone could suggest a reputable website where I can purchase CBD Shops Mailing List I am currently considering creativebeartech.com, theeliquidboutique.co.uk and wowitloveithaveit.com. On the fence which one would be the best option and would appreciate any advice on this. Or would it be much simpler for me to scrape my own leads? Ideas?

  2. Oh my goodness! Awesome article dude! Thanks, However I am having problems with your RSS. I don’t know the reason why I can’t join it. Is there anyone else getting the same RSS issues? Anyone who knows the solution will you kindly respond? Thanks!!

  3. After checking out a handful of the articles on your site, I truly like your way of blogging. I saved it to my bookmark website list and will be checking back soon. Please check out my web site too and let me know how you feel.

  4. Aw, this was a very good post. Spending some time and actual effort to generate a superb article… but what can I say… I procrastinate a whole lot and never seem to get nearly anything done.

  5. I needed to thank you for this wonderful read!! I certainly loved every bit of it. I have got you book-marked to check out new things you post…

  6. Right here is the right webpage for anybody who would like to understand this topic. You know a whole lot its almost hard to argue with you (not that I actually would want to…HaHa). You certainly put a new spin on a topic that’s been discussed for decades. Wonderful stuff, just wonderful!

  7. Howdy! I could have sworn I’ve been to this site before but after browsing through some of the posts I realized it’s new to me. Nonetheless, I’m certainly pleased I found it and I’ll be bookmarking it and checking back regularly!

  8. An outstanding share! I have just forwarded this onto a coworker who has been doing a little research on this. And he in fact bought me breakfast due to the fact that I discovered it for him… lol. So let me reword this…. Thanks for the meal!! But yeah, thanx for spending time to talk about this issue here on your blog.

  9. I was excited to find this great site. I need to to thank you for ones time for this wonderful read!! I definitely loved every part of it and i also have you book-marked to see new things on your website.

  10. Greetings! Very helpful advice in this particular article! It’s the little changes which will make the biggest changes. Thanks a lot for sharing!

  11. Right here is the right site for everyone who wishes to understand this topic. You understand so much its almost tough to argue with you (not that I actually will need to…HaHa). You definitely put a brand new spin on a subject that’s been written about for decades. Great stuff, just excellent!

  12. Hello there! This article could not be written any better! Reading through this post reminds me of my previous roommate! He constantly kept preaching about this. I am going to send this post to him. Fairly certain he’ll have a great read. Many thanks for sharing!

  13. I blog often and I truly appreciate your content. The article has really peaked my interest. I am going to take a note of your website and keep checking for new information about once a week. I subscribed to your RSS feed too.

  14. Your style is really unique in comparison to other people I’ve read stuff from. Thanks for posting when you have the opportunity, Guess I’ll just book mark this page.

  15. Oh my goodness! Amazing article dude! Many thanks, However I am encountering troubles with your RSS. I don’t know why I am unable to subscribe to it. Is there anybody else getting identical RSS problems? Anyone that knows the answer will you kindly respond? Thanx!!

  16. The next time I read a blog, Hopefully it does not disappoint me as much as this particular one. After all, Yes, it was my choice to read, however I actually thought you’d have something helpful to talk about. All I hear is a bunch of crying about something you can fix if you weren’t too busy searching for attention.

Leave a Reply

Your email address will not be published.