The Washington Redskins football club has prevailed in a lawsuit alleging that the team name is racially disparaging and thus must be changed.
Wall Street Journal reporter Kristina Peterson summarizes the case:
Suzan Harjo v. Pro-Football, Inc., a case that began in 1992, centered on whether a dispute over a potentially offensive trademark can be dismissed if the challenge was not filed promptly. Though the Trademark Trial and Appeal Board ruled in 1999 that the name was disparaging and should be changed, the U.S. District Court for the District of Columbia and U.S. Circuit Court of Appeals in Washington, D.C. later decided that the challengers had waited too long to file their petition. The Redskins first registered the mascot with the Patent and Trademark Office in 1967.
The Redskins acquired their controversial name in 1933, before they arrived in Washington.
Although it appears that the lower courts dismissed the case on procedural grounds, it also appears that plaintiffs tried to make substantive arguments why the Supreme Court should grant certiorari. Today, the Court declined. (Missing from Peterson’s story is any clue why the issue is justiciable, but that’s an issue for another blog.)
The substantive argument appears to be that the name “Redskins” is racially disparaging and that this fact should trump procedural defects in the plaintiff’s case:
Groups of law and psychology professors have filed amicus briefs in the case, urging the court to prohibit dismissing trademark disputes based on timeliness questions if the name does public damage.
A “public harm” argument has (at least) two sides. Even if it is stipulated that the Redskins name causes harm to some people, there should be no doubt that being forced to change it would cause harm to others, particularly Redskins fans.
How does one go about weighing these harms? We can think of three.
First, harm suffered by the plaintiff could be treated as a trump card. The right of the plaintiff to be free from harm could be given all weight, with the harm a name change imposes on those who like the name simply being ignored. This appears to be the position of the plaintiff in the case.
Second, harm suffered by Redskins fans if the name were forcibly changed could be given all weight, with the harm suffered by the plaintiff given no weight at all. This appears likely to be the position of Redskins fans.
Third, a utilitarian calculation could be performed to see which side suffers the greater harm. This could be done by voting, though that immediately raises a question about who makes up the electorate. Redskins fans would likely vote overwhelmingly in favor of keeping the name, but the proportion of votes in favor would decline as the electorate is expanded. Cowboys fans, for example, might well want to vote for the nefarious purpose of changing the team’s name to the Washington Sissies. Depending on the result of next Sunday’s game, some Redskins fans might agree.
Owner Dan Snyder paid $800 million for the team in 1999. A significant but unknown proportion of this value was tied up in the team name. A court decision to force Snyder to change the team name would destroy this private property.
Recently, many Redskins fans have begun demanding that Snyder sell the team, believing that his interference is the underlying cause of the team’s recent performance problems. There are several Facebook groups called “Fire Dan Snyder,” the largest of which has nearly 7,000 members.
This suggests the makings of a resolution. Instead of paying lawyers to continue litigating, plaintiff Harjo could buy the team from Snyder and change it however she sees fit. She would have to get the NFL’s approval, of course, and it’s unlikely that they would approve a name like the Washington Sissies.
Besides, that could lead to a lawsuit alleging that the name is disparaging to the testosterone-challenged.