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Supreme Court pushes Redskins' name fight back to society

20 June 2017

The Supreme Court agreed on Monday, finding 8-0 that an Asian-American band had the right to trademark "The Slants", even though some Asians would find the the term offensive.

"In today's decision, there was no dissent from any side of the spectrum". To do so, all eight justices who participated in the case said, would be a clear violation of the First Amendment's guarantee of free speech.

"The Supreme Court vindicated the team's position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government's opinion", team attorney Lisa Blatt said in that statement.

That provision of the law prohibits registering trademarks that "may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute". The Fourth Circuit put the case on hold last fall while the Supreme Court was considering The Slants' case.

Thankfully, the Supreme Court correctly saw the government's contorted rationale for what it was - a justification to deny freedom of speech.

The Supreme Court found that Simon Tam could trademark the Slants as the name of his Asian-American rock band because it would be unconstitutional for the U.S. Patent and Trademark Office to discriminate against it, citing the First Amendment's free speech protection.

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The impact of the court's decision is readily apparent in the context of the dispute over the NFL's Washington Redskins. The U.S. District Court for the Eastern District of Virginia also ruled in favor of the Blackhorse parties in 2015 on the same grounds, following the football team's appeal.

"(The idea that the government may restrict) speech expressing ideas that offend ... strikes at the heart of the First Amendment", wrote Justice Alito in his opinion. "It's a tough outcome to swallow because many people - even myself for good and proper reasons - don't like the prospect of really offensive marks being registered", Nodine said.

The Slants had support from liberal and conservative groups, ranging from the American Civil Liberties Union to the U.S. Chamber of Commerce.

FILE - In this September 18, 2016 file photo, a Washington Redskins helmet is seen on the sidelines during the first half of an NFL football game against the Dallas Cowboys in Landover, Md. "I don't like their name and I don't like their logo".

This was not only a huge victory for the rather obscure band, but for free speech, in general.

A statement issued in the name of Blackhorse and four other Native American petitioners called the high court's ruling narrow: "It focused exclusively on whether the disparagement provision of the law was constitutional".

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The Redskins had its registrations repealed in 2014 by the trademark office because the office thought the team's name and mascot disparaged Native Americans.

Schiller, the intellectual property attorney at Boies Schiller Flexner in NY, is a lifelong fan of the team.

The group opposing the Redskins trademark registration said they were disappointed with Supreme Court's decision.

But Amanda Blackhorse, a Navajo woman who has been the lead plaintiff in a yearslong legal fight against the team's name, said the fight is not over, adding that years of litigation have found that "the term is offensive".

Supreme Court judge Samuel Alito said the patent office could not refuse to register the group's name because it was deemed disparaging. The question for the team is: "Why would you want to?"

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Supreme Court pushes Redskins' name fight back to society