By Claire Guthrie Gastañaga and Rebecca Glenberg
In the past two years, the ACLU has joined other civil rights organizations in calling upon the owners of the Washington, D.C., pro football team to get rid of its highly offensive, racially charged name. Today, we filed a brief asking a federal court to find that the U.S. Patent and Trademark Office (PTO) violated the team’s constitutional rights by canceling the registration of the team’s trademark in that name. These two positions are not contradictory.
Our Constitution gives us the right to respond to racist speech by condemning it in the strongest possible terms, circulating petitions and organizing boycotts of brands that sell their products using racial epithets or stereotypes. We can use the power of our pocketbooks as well as the power of our voices to persuade others not to use language that perpetuates racial injustice. This is our role and duty as members of a free society.
It is not, however, the role of our government. The First Amendment does not allow the government to decide what speech is acceptable and to impose legal burdens upon speech that it deems improper. That, however, is exactly what the Lanham Act — the federal statute regulating trademarks — requires the government to do. Under that law, the PTO may not register any trademark that is “disparaging,” “scandalous” or “immoral.”
When the government makes judgments about what words are “immoral,” it is doing exactly what the First Amendment was designed to prevent: silencing ideas with which the government disagrees.
Moreover, such judgments are inherently subjective and unpredictable. In many cases, the PTO has refused to register a trademark for one company or organization because it is “scandalous” or “disparaging,” then turned around and granted registration to someone else using the exact same words. For example, the PTO would not allow a band made up of Asian-American musicians to register its name, “THE SLANTS,” because it considered the name to be disparaging to Asian-Americans. But the word “SLANT” has been registered as a trademark for many other products, including pesticides, serving ware and educational services.
Do we really want our government to decide whether a word is being used as an insult or as a compliment? Should the government decide that it is acceptable for some people, but not others, to use a certain name? In a country that values free speech, the government does not make those decisions. We make those decisions, as individuals and as a society.
Claire Guthrie Gastañaga is executive director of the ACLU of Virginia and Rebecca Glenberg is the organization’s legal director. Contact them atacluva@acluva.org.
