Many critics of a certain football team’s use of the “R” word concede that there is no “free speech” issue. Even the American Civil Liberties Union (ACLU), harsh critic of the team’s name—calling it a “vile name”—maintains its equally staunch support of free speech: “The owner of the Washington Redskins has a right to call his team anything he wants.”
Free speech protection does not solve the problems facing the team owner, as demonstrated by a different effort to persuade the U.S. Trademark office to revoke the trademarked status of “Washington Redskins.” The group behind the effort cites the U.S. law that prohibits trademarks that involve disparaging, scandalous, contemptuous or disreputable names. Revocation would undermine the team’s marketing program for sports apparel and memorabilia.
The trademark challenge shows serious potential. On March 17, 2014, the Patent and Trademark Office officially refused to register the trademark “Washington Redskin Potatoes,” on the ground that “the applied-for mark includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs, or national symbols.” That denial has implications for revoking trademark protection for the team name.
Denial of a trademark is not the same as prohibiting a name, and it does not eliminate the free speech issue; but it does damage the commercial potential for sales of a product. It removes the easiest method of protecting a brand against competition. In other words, denial of a trademark affects a company’s bottom line. Thus, the proponents of trademark revocation are deploying an economic as well as a legal approach.
Some critics of the “R” word bypass both the free speech and trademark issues and focus on the potential for a criminal law “hate crime” approach, based on the history of wrongs associated with the word. The strongest statement of this approach starts with the fact that the word perpetuates 500 years of hate crimes. There’s even a YouTube video, “Redskins-A 500 Year Hate Crime.”
U.S. law defines “hate crime” as follows: “crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter; forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage or vandalism of property.”
Although the definition explicitly refers to “prejudice based on…ethnicity,” the law does not seem to apply to commercial use of a name. Regardless of how derogatory the name may be, criminal prosecution would have to identify an associated crime from among those listed. Even a broader reading of the law that viewed the list as not exclusive would have to identify a crime of some sort that was committed, facilitated, or precipitated by the name. Even then, there would be the question whether the user of the name had committed the crime.
We know in the course of U.S. history that users of “redskins” as a name have often committed crimes—including all the ones listed in the hate crimes law—against the Native peoples to whom they applied the name. In fact, it is this long history of crimes against “redskins” that makes so obvious the ridiculousness of the notion that the name “honors” Native peoples.
Native peoples continue to confront hostility today, sometimes rhetorical, sometimes also violent. The high suicide rate among American Indian children is one effect of historical and contemporary hatred and hostility directed at Indians. As former Senator Byron Dorgan, put it: “Indian youth suicide cannot be looked at in a historical vacuum. [It is tied to a] trail of broken promises to American Indians.”
A National Congress of American Indians (NCAI) report focuses on the “R word” mascot as an extension of historical anti-Indian violence. Another NCAI statistical report on violence against Native women underscores the historical pattern: “Native women on tribal lands lack the most government protections from the threat of violence against them.”
So, the use of an anti-Indian epithet may not technically be a “hate crime,” but it is hateful and damaging. In conjunction with other supposedly “positive” commercial caricatures, it is part of an overall racist attitude toward Native peoples. As one commentator put it: “American Indians have been so marginalized…that all we know of them mostly consists of racist stereotypes and animated Disney characters. And when someone says there’s something wrong with these images, we think, ‘What’s the problem?'”
The problem is that the problem is not understood. Once again, the Indians’ burden is to educate the white man.
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.