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The Washington Pigskins scored a major legal victory this morning when the U.S. Court of Appeals for the Federal Circuit ruled that the government’s prohibition of “disparaging” trademark registrations, such as those cited against the team last June, violates First Amendment principles of free speech.
The split ruling, reported by Law360, arose out of a case in which attorneys for the band The Slants argued that Section 2a of the Lanham Act—codified in the 1940s—infringed upon their clients’ rights after the law served as precedent to deny the band trademark registration (their name, it was said, was offensive to Asian Americans). Today the circuit court declared that section 2a—also used against the Pigskins—discriminates against unpopular speech.
“The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks,” U.S. Judge Kimberly Moore wrote. “[The First Amendment] governs even when the government’s message-discriminatory penalty is less than a prohibition.”
Still, some circuit judges sharply disagreed with the court’s majority. “One wonders why a statute that dates back nearly 70 years—one that has been continuously applied—is suddenly unconstitutional as violating the First Amendment,” U.S. Circuit Judge Alan Lourie wrote in a dissenting opinion.
City Desk has reached out to Arnold & Porter LLP, representing the Washington Football Team in their case, and will update this post if we hear back.
Update Dec. 23: Joel Barkin, vice president of communications for Oneida Indian Nation, which launched the national Change the Mascot campaign against the use and depiction of the team’s name, provided the following statement to City Desk when asked about Tuesday’s federal court ruling:
“The bottom line is this—there is nothing in the First Amendment that requires the federal government to trademark a racial slur. Every major Native American and civil rights organization in America along with countless others have called on the NFL and [Washington Football Team owner] Dan Snyder to change the team name. It shouldn’t take a federal court, the Supreme Court or Judge Judy’s court to understand that it 2015, it’s unacceptable to promote and profit off of a dictionary defined slur.”
Illustration by Carey Jordan