Like any real Giants fan, I hate the Redskins. Always have. Not the sort of hate that makes me want to take up arms and do them harm, but the sort of hate that makes me proclaim that they don’t deserve to be on the same playing field as my beloved New York Giants. Heck, they shouldn’t even be in the NFC East. They should be an AFC team, because I hate them that much. Yes, I’m ridiculous when it comes to my Giants.

But what about the name?  What about the word, Redskins?  My pal, Greg Prickett, who is part Menominee Indian,  responded to a post at Fault Lines noting the Supreme Court’s grant of cert in the Slants case, in which the Redskins weaseled their way onto the certiorari coattails.  Greg wrote:

This is not a free speech issue. Snyder can call his team anything he wants, but the government does not have to offer trademark protection to such an obviously racist team name.

He’s not exactly wrong, but he’s not right either. Yes, Redskins is an “obviously racist team.” And name for a team, too. So while Snyder, the owner of that horrible team, may be entitled under the First Amendment to use it, is he also entitled to the protection of his mark by the government?

Many people, like Greg, see names that they believe to be clearly over the line to be unworthy of trademark protection, and with good reason. Let’s assume that the majority of Americans agree that it’s an offensive name for an NFL team, should be changed to something different, and is unworthy of protection. But then, what of the band, The Slants?

The word is certainly pejorative, definitely a slur, and yet, that’s kinda why the band chose it.  Section 2(A) of the Lanham Act, 15 U.S.C.S. § 1052(a), prohibits “immoral, deceptive, or scandalous,” or “disparaging” trademarks. Who wants disparaging trademarks, right? Except it’s not that simple.

First, who decides what’s disparaging and what’s not.  Even if everyone, except a few diehard Redskins fans who are wrong about everything, agrees that the name should go, it’s just one word. What about the rest of the words? If we were to make a big list of all the words that someone in America finds disparaging, in order to decide what words were disparaging, we would end up with a very long list and a lot fewer words in the lexicon. Many of us would find words stricken by some to be absurd and wrong, but who are we to deny their feelings that the word is disparaging?

Disparaging is not an objective test. It’s what one feels about a word. And it’s what one feels from moment to moment. Even Redskins was once a perfectly acceptable word, until it wasn’t.

At the New York Times Room for Debate, the question was posed whether this was a First Amendment violation. Those who argued that it was not, that the government should not “help trademark owners profit from Hate,” took for granted what constituted offensive words.

More speech is always better than less. Government regulation is another matter. I’m all for protecting the First Amendment. I’m just not for protecting a team’s exclusive right to profit from ignorant racism. Why reward their hate even more?

Reliance on the obviousness of what constitutes hate speech dodges the hard question. Wrapping it up in populism adds nothing to the mix.

The public must decide whether it will tolerate the use of hurtful racial slurs as trademarks. But in the meantime, the government need not sanction them. For 24 years, Native American leaders have sought to deny the Washington area football team federal recognition of their racist trademark. That high-profile racism is damaging enough without the government literally placing its seal of approval on the trademark.

Does registering a trademark “literally” mean the government places its seal of approval on a word? To some, obviously. But should it?

It is not the purview of trademark law to dictate morality, no matter how appealing or distasteful a mark may be. The purpose of trademark law is to promote fair competition by preventing consumer confusion and deception in the marketplace. The type of consumer protection at the heart of trademark law is one of source quality, not moral quality.

But it’s not just the government imposing its flavor of morality upon the citizenry, which raises plenty of problems on its own. It’s somebody in the bowels of a government building who is given the job of deciding whether a word is sufficiently “immoral, deceptive, or scandalous,” or “disparaging” to be denied trademark protection.  Words are deemed sufficiently disparaging because it offends some random guy in a cubicle in the basement of a government office.

For some, the problem is that their ears can’t bear to hear certain words. As others acknowledge, the government cannot, because of the First Amendment, prohibit the utterance of any word, no matter how much it hurts someone’s ears.* But must the government endorse, protect those words?

There being no universally approved list of bad words, and there being damn good reason why we would never want to have such a list, and there being a choice by a band that wants to call itself The Slants to use words that might be offensive in one context, but ironic and pointed in another, to exercise its right to call itself any damn thing it pleases, the purpose of a trademark is invoked.  What if another football team decided to call itself the Redskins? You wouldn’t know which team to hate.

The government should not be in the morality business. And, indeed, it’s not, except some believe that one of the callings of the government is to enforce their sense of morality.  Do you trust the government to define the words that are sufficiently disparaging, and in contrast, not sufficiently disparaging? Do you trust the sensibilities of some random guy in a cubicle in the basement?

It would be far more effective to stop imputing moral significance to secular acts by the government, no matter how strongly some feel otherwise. If the band, The Slants, wants to call itself by a name that would be outrageously offensive if used unironically, so what? And if Dan Snyder insists on perpetuating the name of his NFL team despite objection, just hate it as much as I do.

Hate the word all you want. That’s your right. And hate the guy who registered it as a trademark, if it makes you happy. That’s your right to. But to expect the government to enforce your sense of morality misapprehends what government should do. Remember, that random guy in the basement cubicle may hate a word that you like and reject it as disparaging. His idea of morality might not be yours.

*Yes, there are exceptions to the First Amendment. No, they don’t apply here.