The Washington Redskins is a name that is offensive and perpetuates racism against Native Americans. Should it be changed? Yes. But should the government get to make that call? As we told a federal district court yesterday, the answer is no, because the First Amendment protects against government interference in private speech.
Nevertheless, the government has indeed weighed in. Last June, the U.S. Patent and Trademark Office cancelled the football team's federally registered trademark, which it deemed disparaging to Native Americans. We don't disagree with that judgment, but the government should not be able to decide what types of speech are forbidden – even when the speech in question reflects viewpoints we all agree are repellent.
The team took the case to court, and the ACLU filed an amicus brief yesterday, alongside the ACLU of Virginia and NYU Tech Law & Policy clinic, arguing that the government cannot constitutionally deny trademark benefits on the basis of speech that it disagrees with or finds controversial. Our brief is on behalf of the First Amendment, not the Redskins. The ACLU has joined the loud chorus of people and groups calling on the team to change its name (we side with the Dude from "The Big Lebowski" on this one), but the government should not have the power to make decisions about which trademarks are too "immoral," "scandalous," or "disparaging" to be given trademark protection.
Unfortunately, a problematic trademark law, the Lanham Act, gives it that very power.
Perhaps unsurprisingly, these vague terms have led to a host of arbitrary decisions about what is "immoral" or "scandalous," leading to the inconsistent policing of speech. This results in the Trademark Office deciding that while it is permissible to register "Wanker" for beer, it is not allowed for clothing. And "Cocaine" is fine for clothing, but not for soft drinks. You can have a book series trademarked "Managing Your Inner A**hole" but not "The Complete A**hole's Guide To..." These inconsistencies are inevitable given the lack of any standards on what exactly constitutes an immoral, scandalous, or disparaging trademark.
Even more problematic is that the Trademark Office has attempted to protect minority groups from self-disparagement, by considering the race of the speaker. Take the example of the band The Slants. The band describes itself as Asian-American and chose its name as a method of reappropriating the term. The Trademark Office nonetheless rejected the trademark because of its members' ethnic heritage, stating that the term "slant" as applied to a band composed of Asian-Americans could only be seen as a slur.
Indeed, the reappropriation of terms that have historically disparaged marginalized groups is a common way for those same groups to reclaim the meaning of those terms and change social attitudes. Consider the fact that the group "Dykes on Bikes" had to fight to register its name, which was first rejected for being vulgar or disparaging, but later accepted after the group submitted evidence that the term "dyke" can be a source of pride for their community.
But why should the government get to play language police? It shouldn't – especially when experience shows that self-expression by women and sexual minorities is more likely to be deemed immoral or scandalous, and therefore more subject to government restriction under the present trademark law. Furthermore, cancelling the Washington team's trademark may not even be effective, because cancelling a trademark doesn't prevent the team from using it. It does, however, make it easier for other people to disseminate it. So the Trademark Office decision in this case might result in even more use of a distasteful term – not less.
The ACLU has a history of defending the speech rights of groups we disagree with, because the First Amendment doesn't protect only popular ideas. The Washington team's choice of name is unfortunate. They should be – and are being – pressured to change it. But it isn't government's role to pick and choose which viewpoints are acceptable and which are not.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.