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The insensitivity of “Redskins”, the First Amendment, and trademarking “Redskins”

Sep 06, 2012 The insensitivity of “Redskins”, the First Amendment, and trademarking “Redskins”

In Washington, DC, at least into the 1950’s, segregation was customary, including the segregation of black people to theater balcony seats and in restaurants. After reading Pauli Murray’s Song in a Weary Throat soon after its 1987 publication, I asked the owner of a longtime pharmacy near my law school about segregation at his own then-existing lunch counter. He told me that he refused to serve black people at his lunch counter into the 1950’s. He gave a convenient excuse: "If I served black people, the construction workers across the street would not have eaten at my lunch counter." Fine; put your money where your mouth is and let the construction workers eat elsewhere if they will not eat at an integrated lunch counter.

For quite some time, apparently right into the 1960’s, when buses went from Washington, D.C., into Virginia — the cradle of the Confederacy — the bus driver directed black people to the back of the bus, sometimes on the Fourteenth Street Bridge before the bus had even left the Washington, D.C. border.

Maryland had rampant segregation right into the early 1960’s at the very least. Late Supreme Court Justice Thurgood Marshall grew up in Baltimore and experienced the rabid racism. He attended Howard Law School when the University of Maryland Law School barred black students; now Maryland’s international airport is named after him. He attended a segregated public school. In a television interview, he talked of a childhood experience where he could not find a colored-only bathroom in downtown Baltimore when he needed to urinate badly, so he went all the way home, and by that time the urine was running down his leg. Read more here.

Particularly with the foregoing context, the Washington Redskins should have changed its name long ago. Instead, the team digs in its heels to hold onto its name, to the point of vigorously defending its right to trademark the very name Redskins.

Worst than the name Redskins is the nicknam "Skins" — which has even found its way onto bumper stickers entitled "Go Skins", compliments of the Washington Post, sharply degrading the newspaper and its courageous work in breaking the Watergate scandal — which is reminiscent of skinning people alive.

At work here, then, is a severely racially insensitive football team name, the even more severely insensitive term "Skins", and the absolutely First Amendment-protected right to use those words.

Making matters more complex are the ongoing trademark law battles between Native Americans claiming Redskins cannot be trademarked because it is disparaging, and the Redskins football team, claiming it has the right to trademark the name.

Trademark protection involves infringing other’s free expression rights to use the trademark. On the other hand, denying a trademark on the basis that it is degrading involves content-based infringement on the free expression of the party seeking to obtain a trademark.

In 2009, the Redskins won a long-fought battle to preserve its trademark right over Redskins, against Native Americans’ efforts to do the opposite. Native Americans reportedly are about to file further litigation seeking to remove some of the Redskins trademarks. Thanks to Above The Law for reporting on the story.

I took a particularly greater interest in Native American issues from reading American Indian Movement co-founder Dennis Banks’s Ojibwa Warrior (written with Richard Erdoes), and then meeting him in 2006 at the conclusion of the Sacred Run. We are both friends of Jun Yasuda, who joined Dennis from California when he went "underground to the Onondaga Reservation in New York" after California’s Jerry Brown — who refused to extradite Dennis to South Dakota concerning criminal charges over the Wounded Knee event — left the governor’s office. More on Dennis Banks and Ojibwa Warrior is at my blogposting here.

In Ojibwa Warrior, Dennis Banks recounts being forced as a child to separate from his parents and attend a distant boarding school run by the Bureau of Indian Affairs, which attempted to strip Native American culture from its boarders. More on this addition to the annals of the history of American government racism is in this 2008 NPR report.

Back to the Washington Redskins football team. The team retains its absolute right to use the Redskins name. I have my absolute right not to give the team a dime for tickets, souvenirs nor anything else. I vote with my wallet against the team’s use of the Redskins name.

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