Major NFL Match-up: Disparaging Speech Versus The First Amendment

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There is a joke circulating that the NFL team in the District of Columbia wants to change its name by eliminating "Washington" so as not to be associated with a poor role model for young fans of football.  Humor notwithstanding, however, disparaging speech is no laughing matter. As an individual I condemn it; as a lawyer, however, I think that protecting disparaging expression is the essence of what is protected by the First Amendment of the U.S. Constitution (there is really no need to protect complimentary speech). The necessity of  protecting disparaging speech in the interest of preserving the truly free marketplace of ideas envisioned by the First Amendment is why I think it is likely that the misguided effort by the D.C. NFL team will succeed in perpetuating its Native American trademark despite the fact that it offends many. That view is shared by 18 distinguished law professors, who, earlier this month, filed a so-called friend-of-the-court brief supporting the D.C. NFL team's trademark.

What is at issue is a provision in the trademark law that denies trademark registration to marks that consist of or comprise immoral, deceptive or scandalous matter, or matter which may disparage or falsely suggest a connection with persons (living or dead), institutions, beliefs, or national symbols, or bring them into contempt or disrepute. The trademark office denied registration to the well-known Native American mark of the D.C. NFL team based on this law, a lower court affirmed the action of the trademark office, and the D.C. team is now appealing that denial to a federal appellate court.

Proceeding against the trademark of the offending name is a good strategy because owning a trademark allows the owner to exclude others from using it, giving the owner a legal monopoly over items such as t-shirts and hats bearing the trademark. The problem is that the portion of the trademark statute described above concerns the very sort of speech that the First Amendment protects. If unpopular speech is limited, then the protection afforded by the First Amendment is illusory, particularly because what is popular often varies depending on the eye of the beholder. In fact, the U.S. Supreme Court has often upheld hateful speech, e.g., racist or Nazi speech, on the basis of the First Amendment.

The lawyers for the D.C. NFL team filed a strong brief.  They cited a number of offensive trademarks that have been allowed, such as "dumb blondes," and argued that it would be inconsistent to deny some offensive trademarks and not others, even if there could be a consensus on the meaning of what is offensive.

Then the law professors weighed in.  They attacked the premise of the lower court opinion denying the trademark, which was that the trademark office was engaging in so-called "government speech" when it issued trademarks and that the government had a First Amendment right to do that.  The law professors demolished that argument, saying in their brief that it is "nonsensical" to treat the literally millions of trademarks registered by the government as speech by the government. The brief goes on to state that classifying trademarks as government speech  would give the government a free hand " use its trademark registration power to pursue any policy on its agenda: it could deny registration to "Coke" and "Pepsi" to discourage soda consumption...".

Therefore, I do not believe that trademark law will end the registration of this disparaging team name because I think that the D.C. team will win its appeal.  What will ultimately probably end this repugnant trademark is what the First Amendment protects--the free marketplace of ideas--as citizens demonstrate against the trademark and decide not to pay for products bearing it.


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I am Senior Counsel in the Entertainment, Sports & Media Litigation Practice Group at Manatt, Phelps & Phillips, LLP, and I have taught sports law at Santa Clar...