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Washington Redskins saved by our Judicial Overlords

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Unfortunate that it has come to this.

This is not a political or law blog so I apologize to the extent this post becomes about either topic. It's rare for my two passions the two things I do between beer and drunk time to collide, but a legal matter of some import to Redskins fans was recently decided upon. My hat is tipped to Michael David Smith at Fanhouse, who actually posted on the ruling earlier this week. In case you didn't know:

A group of American Indians has spent the last 16 years suing to get the Washington Redskins' trademark on the name "Redskins" revoked, contending the the term is offensive and that offensive terms can't be trademarked.

The latest ruling in the case was released on July 13th but adjudicated on June 25th. If you want the cliff notes version of the controversy, try this AOL article on for size, summarized thusly:

The Washington Redskins have won the latest round in a 16-year court battle against a group of American Indians, prevailing on a technicality that again skirts the issue of whether the team's nickname is racially offensive.

In a ruling dated June 25 and first circulated Thursday, U.S. District Judge Colleen Kollar-Kotelly ruled that the youngest of the seven Native American plaintiffs waited too long after turning 18 to file the lawsuit that attempts to revoke the Redskins trademarks.

To the surprise of absolutely no one, the plaintiffs were miffed:

The lead plaintiff, Suzan Shown Harjo, said Friday the group will appeal.

"She ruled as we anticipated she would: for the loophole that would allow everyone to avoid the merits of the case," said Harjo, president of the Washington-based Morning Star Institute that advances Native American causes.

The plaintiff also had this to say:

"It's so ironic that they would like to get rid of this though the loophole of passage of time, when we're in our 16th year of litigation," Harjo said. "Unbelievable. If this (lawsuit) were a child, we would be preparing the child to go to college."

I wouldn't call it ironic so much as I'd call it tragic, a tragic waste of time. Let's discuss the timeline.

In 1998 plaintiffs Suzan Shown Harjo, Raymond D. Apodaca, Vine Deloria, Jr., Norbert S. Hill, Jr., Mateo Romero, William A. Means, and Manley A. Begay, Jr. filed suit with the Trademark and Trial Appeal Board. I didn't read the case because it's many, many, many pages long. But I did pay close attention to the data portion of the ruling. Petitioners (plaintiffs, whatever) provided a survey of the degree to which particular words offended Native Americans. The meat and potatos:

Individuals in both population groups were read a list, in varying order, of the following terms: “Native American,” “Buck,” “Brave,” “Redskin,” “Injun,” “Indian,” and “Squaw.” With respect to each term, participants were asked whether or not they, or others, would be “offended” by the use of the term and, if so, why. Dr. Ross testified that he chose these terms as representative of a spectrum of acceptability, positing that, in general, “Native American” would be likely to be considered acceptable and “Injun” would be likely to be considered pejorative.

Reasonable enough methodology, as far as I'm concerned. The results were absolutely fascinating. On the one hand was the control group of the general population reacting to a simple question ("is it offensive to you") to a few terms. Those results:

General Population Sample (301 sample size)

INJUN
149
(49.5%)


REDSKIN
139
(46.2%)


SQUAW
109
(36.2%)


BUCK
110
(36.5%)


BRAVE
30
(10.0%)


INDIAN
8
(2.7%)


NATIVE AMERICAN
6
(2.0%)


The numbers you see are the respondents saying "Yes, offensive to me." As you can see, the term "Redskin" was found to be offensive by 46.2% of the GENERAL POPULATION in America sometime before 1999 if you find the sample size reliable.

The fascinating part is what happened when the same question was presented to Native Americans. The results:

Native American Population Sample (358)

INJUN
181
(50.6%)
REDSKIN
131
(36.6%)
SQUAW
169
(47.2%)
BUCK
99
(27.7%)
BRAVE
25
(7.0%)
INDIAN
28
(7.8%)
NATIVE AMERICAN
10
(2.8%)

Keeping in mind that this was the Petitioner's Survey, you'll notice that, miraculously, the Native American population was less offended by the term "Redskin" than was the general population. Because I'm concerned that the point isn't hitting home, what I'm saying is: Per the petitioner's data Native Americans are less offended by the term Redskin than are non-Native Americans.

The actual law on Trademarks that could give rise to judgment in favor of the plaintiffs:

The relevant portions of Section 2 of the Trademark Act (15 U.S.C. 1052)provide as follows:
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it -

(a) Consists of or comprises 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;

With lengthy discussions on the legal definition of "scandalous" and "matter which may disparage" etc. that I won't go into. The holding, in 1999, was a loss for the Redskins:

Decision: As to each of the registrations subject to the petition to cancel herein, the petition to cancel under Section 2(a) of the Act is granted on the grounds that the subject marks may disparage Native Americans and may bring them into contempt or disrepute. As to each of the registrations subject to the petition to cancel herein, the petition to cancel under Section 2(a) of the Act is denied on the ground that the subject marks consist of or comprise scandalous matter. The registrations will be canceled in due course.

I find that result amazing, as did the Redskins and the NFL; they appealed arguing in part that the Trademark Board's finding that the trademark was disparaging was not supported by evidence. In 2003 Judge Kollar-Kotelly reversed the Trademark Board's holding.

The Redskins initially registered the trademarks in 1966, some 42 years ago. The original trademark challenge was issued around 1994. That is relevant and I will discuss more on that momentarily.

The court held in 2003 that the evidence the TTAB (Trademark and Trial Appeal Board) was not supported by the evidence and concluded, among other things:

The TTAB's finding of disparagement is not supported by substantial evidence and must be reversed. The decision should also be reversed because the doctrine of laches precludes consideration of the case. Accordingly, the Court grants summary judgment for Plaintiffs on their First, Second, and Fifth Causes of Action. The Court denies summary judgment to Defendants on these Causes of Action. As the Court has no need to reach the constitutional claims raised by Pro-Football, these claims are rendered moot.

For now at least...

The case was remanded in 2005 by the US Court of Appeals D.C. Strangely they held:

Because we find that the district court applied the wrong standard in evaluating laches as to at least one of the Native Americans, we remand the record for the district court to revisit this issue.

I say strange because the District Court actually had two bases for its decision, of which the laches defense was just one. The other being that the TTAB's findings were not supported by substantial evidence.

Without getting into a bunch of legal mumbo jumbo, the premise of laches is: You snooze you lose. In order to file suit in this country one is required to do so in a timely fashion. So, if you harm me in a car accident when I'm 22, I can't wait 30 years to file suit (perhaps because you become rich, perhaps because I think it will make it easier to pursue claims against you since you are prejudiced in your defense by the passage of time and thus loss of memory from those who might testify, just sayin'). The Appellate Court's position was that one of the plaintiffs (Mateo Romero) was too young to file suit at the time the trademark was registered and thus the laches should have tolled until they reached the "age of majority" which is whatever age the state gives you adulthood at. I think in D.C. it is 18. They did not rule on the other plaintiffs, meaning their claim was, in fact, barred by laches.

That remand was the subject of the recent decision of June 25th, 2008, released earlier this week. The Judge, familiar and Honorable Colleen Kollar-Kettely, once more found in favor of the NFL. The Court held, among other things:

Finally, the Court also notes at the outset that its finding that Defendants' claims are barred by laches was an alternative holding to its conclusion that the TTAB's cancellation decision was not supported by substantial evidence. That primary holding was not reached by the D.C. Circuit on appeal, and represents this Court's resolution of the underlying issue of disparagement. As a result, it would be entirely inappropriate for the Court to-as Defendants suggest-“exercise its discretion to deny the defense” of laches in order to allow “the underlying issue of disparagement” to be resolved in this case.

As far as I can tell the laches issue is really irrelevant. If the appellate court is unwilling to reverse the lack of substantial evidence portion of the decision (and that is what has apparently happened) then it is really no matter whether laches bars the claim or not. Even were it allowed, the current holding is that substantial evidence doesn't support the TTAB's 1999 holding. So when plaintiff Harjo argues that the Court held "for the loophole that would allow everyone to avoid the merits of the case" plaintiff should thank the Court for doing so. The court did rule on the merits of the case in 2003 and found them lacking.

In any event, regarding the laches issue, the court held that even if you tolled young Romero's claim to his age of majority, he still waited too damn long to overcome a laches defense. Take it away, court:

As noted above, Defendant Romero waited almost eight years-seven years, nine months, to be precise-after reaching the age of majority before petitioning to cancel the six trademarks in question... That delay is “unusually long by any standard.” See Peshlakai v. Duncan, 476 F.Supp.2d 1247, 1256 (D.D.C.1979) (describing seven-year period of delay in bringing action under the National Environmental Policy Act). Pro-Football correctly notes that “the Romero Delay Period is similar to or longer than the delay in other trademark cases in which courts have applied the laches doctrine.” Pro-Football MSJ at 4 (citing... [A series of boring case law where 2-8 year delays in trademark challenges result in favorable holdings for the laches defense - ED.]).

Some of this is, again, just legal mumbo jumbo. What isn't, what the court is pointing out, is the obvious question: If it were the case that the Redskins trademark were so offensive when registered in 1966, why was suit not filed for some 30 years? If something actionable happened, it was waaaay back in the 60s yet ALL the plaintiffs waited years and years and years to bring suit. The one plaintiff who waited the absolute shortest time to file suit still gave it nearly a good decade before realizing just how disparaging the trademark is/was.

Whether or not one thinks this is a ruling on a "loophole" will depend in large part on whether one was a plaintiff in the actual case and, further, to what degree one cares for fairness in the judicial system. As the court pointed out:

1. Pro-Football Has Demonstrated Trial Prejudice...

First, and quite significantly, Pro-Football notes that Edward Bennett Williams, the President of the Redskins from 1965 to 1980 (when five of the six trademarks at issue were originally registered), died during the Romero Delay Period, on August 13, 1988. Pro-Football MSJ at 8. Pro-Football argues that the loss of Mr. Williams' testimony during the cancellation proceeding before the TTAB constitutes significant trial prejudice because his “testimony or recollections could have been particularly important to the Redskins' defense on the issue of alleged disparagement in the relevant time frame.”...

Next, Pro-Football argues that it has suffered trial prejudice as a result of Defendant Romero's delay because that delay “served to exacerbate the problems inherent in trying to construct methodologically valid surveys of relevant persons' attitudes concerning the Redskins Marks in 1967,” the central issue underlying Defendants' cancellation petition...

Finally, Pro-Football notes that the “undisputed record reflects that the Redskins Club is missing financial records from 1988 and 1991-1992 (as well as from periods before the Romero Delay Period), and that NFL Properties is missing sponsorship lists in connection with the Redskins Marks from 1967 to 1988.”

The entire point of laches is to prevent individuals from being prejudiced in their defense by the passage of time, and the Redskins apparently made a compelling case that they were, in fact, prejudiced by the passage of time. You can call it a loophole or fairness, same difference.

All of that is really beside the point, as that is just the legal battle that shouldn't matter a wit to the rest of us. In the title I called them "Judicial Overlords" only half-jokingly. I would suggest to reader(s), to everyone, that perhaps the judiciary isn't the best place to approach this kind of problem. The idea that the American Legal System is in a better position to tell us what to be offended by than we are is paternalistic and, at the risk of being hyperbolic, dangerous. Despite my lengthy citation to court opinions, nothing I read swayed my opinion one way or the other (besides the TTAB survey evidence, more on that momentarily). If I felt that Redskins was/was not an offensive team name before the holding, I haven't changed my opinion afterwards. Neither have the plaintiffs.

I've always been happy to state my position on the issue, summarized thusly:

1. I do not think merely offensive expression should ever be judicially censored.

2. If I were to waver on 1, it would only be under those circumstances where an uncontroversial fact finding showed that a clear majority of a particular group of people were offended.

3. And the group of people offended must and should be those the alleged offensive term is directed at.

Regarding the first, speech protections exist exclusively to protect those bits of expression someone, somewhere finds offensive. All the might and glory of the 1st Amendment will never need to be utilized to protect your right to use emoticons in text messages, or email pictures of puppies to your coworkers, or defend your right to wave a flag at a patriotic parade. Because, crucially: speech that doesn't offend doesn't require protecting. The expression I find actionable would be those that endanger people such as slander, libel, or shouting FIRE in a crowded area. The right only to express speech that doesn't offend is no right at all.

Regarding the 2nd matter, if offensive speech is going to ever be actionable, let's be clear that it is offensive to the point of harm. And only that language that is nearly or virtually despised and recognized as hateful, disparaging speech should ever qualify.

Finally, if language should qualify, it should do so through the voice of the alleged inflicted, and not from the peanut gallery. I really have no right to speak on behalf of Native Americans in Re: Washington Redskins, because I'm not a Native American. If the standard were any other way, it would absurdly result in the possibility that 100% of Native Americans could find the word "Redskins" perfectly acceptable, but if 100% of white people felt differently, we could decide on their behalf what kind of language is appropriate for them. That's paternalism, a good example of which can be found here:

It's not a convincing argument. A slur is a slur, and the fact that it was intended as a play on words doesn't change how it looks or sounds today. But Native Americans aren't bothered by it. Should we be?

The answer has to be "Yes."

(So be offended all you want, guy, the issue is whether Native Americans should be offended. You're just telling them that they can't be trusted to look out for themselves, pure and simple.)

Anyways, you may not accept my premises, but if you do, the conclusion is: even relying on plaintiff's evidence in this case history, the term Redskin is not offensive to a majority of Native Americans. That from above, but also aided by two other (perhaps less professional) studies performed in 2002 and ~2004. From a 2002 Sports Illustrated study, that I quote secondhand:

Asked if they were offended by the name Redskins, 75% of Native American respondents in SI's poll said they were not, and even on reservations, where Native American culture and influence are perhaps felt most intensely, 62% said they weren't offended. Overall, 69% of Native American respondents--and 57% of those living on reservations--feel it's O.K. for the Washington Redskins to continue using the name. "I like the name Redskins," says Mark Timentwa, 50, a member of the Colville Confederated Tribes in Washington State who lives on the tribes' reservation. "A few elders find it offensive, but my mother loves the Redskins."

Most recently from a  University of Penn. Annenberg Survey circa 2005:

A new University of Pennsylvania's National Annenberg Election Survey shows that only 9% of Native Americans polled are offended by the name of US football team, the Washington Redskins. 90% said they were OK with the name. Little difference was found between men and women on the issue. The number of "offended" increased slightly among those with college degrees (13%), and those who identified themselves as liberals (14%).

I'm beating a dead horse here, but if Native Americans aren't offended, then I'm not going to get worked up about it on their behalf. It is, in my opinion, a moot point. Until someone can demonstrate with evidence that isn't anecdotal (ex: but I'm 4.6% Native American and I'm offended) I don't think the issue requires much revisiting. The absolute minimum for moral indignity on this issue is a majority of Native Americans to tell me that the term "Redskins" offends them. If highly offended and motivated plaintiffs who have now pursued a claim for over a decade can amass, at best, a survey illustrating a) that some amount less than 50% of Native Americans find the term offensive and b) that the general population finds it more offensive than Native Americans, then I'm simply not on board yet. Convince me.

My full apologies to reader(s) for this long, likely boring, likely ranting post. I view this country's increasing obession with being offended by language with some trepidation (did you notice?) and find it especially dangerous when exercised on other's behalfs. If I'm to be convinced that the term needs disbanding, I'd just as soon hear that en masse from the people allegedly offended rather than from the United States Government, its Judicial system, or white sports writers. Just my two cents.

Let me have it in the comments section, though.

For now at least, Your Washington Panda Bears! Redskins aren't going anywhere.

OMGoose I almost forgot. MDS, who alerted me to the story, had his own take:

Eventually, the Redskins and the NFL are going to have to accept the fact that legal technicalities aren't going to work forever, and that some judge is going to rule that "Redskins" is offensive and revoke the team's trademark. At that point, the team and the league will be forced to make a decision: Lose tens of millions of dollars a year in merchandising, or find a new team name.

There's not much doubt in my mind that at some point in my lifetime, the football team in Washington won't be called the Redskins.

I have enormous respect for MDS and really enjoy his NFL writings, daily, but must admit that we couldn't be farther apart on this particular issue. I do not think that the legal issue ruled on in this case was a "technicality" notwithstanding what the plaintiff had to say about it. I do not think the term "Redskins" or the trademark currently utilized by the team is offensive. I do believe that a majority of Native Americans agree with me. And, finally, I disagree that at some time in his or my lifetime we'll be enjoying the Washington Anything-Besides-Redskins. I felt that if there were a main theme to the last two holdings in the above procedural history, it really was that: This claim was filed too late and the plaintiffs (and thus the allegedly afflicted Native American population) are getting farther, not closer, to getting their way. Indeed, the evidence provided here shows that Native Americans are, over time, getting less offended by the term. Perhaps I'm wrong, but it's my opinion that the longer this thing drags on, the LESS LIKELY it will be that the team has to change names.