The Supreme Court of the United States is not a normal source of material for these rants but that was not the case yesterday. In a unanimous 8-0 decision, the court struck down the provision of the Lanham Act that allows the Patent and Trademark Office to deny trademarks in cases where the name being trademarked may be offensive. The Court said this was a violation of the First Amendment – and indeed, it is. The Lanham Act was passed by the Congress and signed by the President meaning that it was the force of law and the US government that was regulating such speech/expression. As someone who places high value on the First Amendment – and who gets annoyed when people try to invoke it in situations not involving the “interference” of federal laws – I applaud this decision.
Right about now, I can imagine people wondering what the heck this has to do with sports. Here it is:
- This decision is going to make it very difficult for the Patent and Trademark people to prevail in their action to deny the Washington Redskins a renewal of the team trademark. [Aside: This case did not involve the Redsiins; this case involved the “trademark folks” and a rock band with a name that the trademark folks found to be offensive.]
Given that there are a significant number of folks who find the name “redskins” offensive, my reaction – were I the owner of the team – would be to change it to something else. However, I do not own the team and never will. Therefore, this decision now rests in the hands of Danny Boy Snyder and the odds of him changing the team name are about the same as the odds that I will buy the team from him. This has to remain the owner’s decision and not the US Government’s decision.
Since my preference would be to change the team name – and I acknowledge that my preference does not matter a whit as compared to the preservation of the First Amendment – I have paid attention to the protests and the actions taken by folks who seek that change. This Supreme Court decision deals them a serious if not fatal blow. I have said this before; let me say it again here with regard to this “protest movement”:
- If you try to make the team name a moral issue, you can save your breath to blow your beans.
- The only way to effect a change here is to make this an economic issue – one that turns the team from a cash cow into a cash drain.
Denying a trademark renewal would have been an economic blow to the team; now it seems as if that is not going to happen. So, if the activists are going to do anything useful now, they have to come up with some other economic aspect to their activism. And as I finish typing those words let me say unequivocally that organizing and maintaining a boycott against an entity as large and popular as any NFL team or the NFL itself is more than merely a daunting task.
For a far more informed analysis of this decision and its potential impact on the Redskins/Trademark Office contretemps to come, please check out this link from Forbes.
Since I began today with a sports issue that seems to ricochet off the First Amendment of the US Constitution, let me take a moment here to comment on a sports issue that has nothing to do with the First Amendment – – even though some would have you believe that it does. Over the weekend, Colin Kaepernick made his job hunt in the NFL more difficult. After a jury in Minnesota returned a verdict of “not guilty” in the trial of the police officer who shot and killed Philando Castile. Kaepernick was hardly the only person who protested the verdict and every person who protested peacefully simply exerted their fundamental Consitituional right to do so. However, what Kaepernick did as part of his protest makes his job search more difficult.
In a Tweet, Kaepernick compared police officers to the people who hunted down runaway slaves in the 1800s; he posted a picture of the badges worn by those slave hunters juxtaposed with a police badge from today. Before going a millimeter further, let me state clearly:
- I think it is inappropriate to equate – or even suggest – that police officers in the US in 2017 are analogous to the runaway slave hunters of the early 1800s.
- Nonetheless, if Colin Kaepernick or any other folks think that is a valid expression of their feelings, they are free to say so and to post images like the ones Kaepernick did.
- There must be NO legal consequences from any level of government to such expression in order to preserve the First Amendment.
At the same time, this latest expression of protest from Colin Kaepernick makes him “more controversial” for a team that might consider signing him to be part of their roster. Now, even if some teams – or even all of the NFL teams – make a decision that his level of controversy is more than they wish to incur, that is not a legal consequence of Colin Kaepernick’s protest or his latest appropriate expression of his protest.
There are precedents in sports where individuals have made inappropriate/offensive remarks and it cost them their jobs on a permanent basis. Consider:
- Al Campanis: He was the GM for the LA Dodgers for about 20 years. In the late 80s, he said on TV that Blacks “may not have some of the necessities” to be baseball managers or general managers. Campanis had been a teammate of Jackie Robinson and was good friends with Robinson; Campanis had been a very successful GM in his career. Nonetheless, after his remarks, he became radioactive and never worked in MLB again.
- Jimmy “The Greek” Snyder: As a TV personality/commentator, Snyder was widely known for his flamboyant style and his definitive viewpoints. Arpound the same time that Al Campanis made his career-killing remarks, Snyder said on camera that the reason Blacks were so good as athletes was that they were bred to be big and strong by the slave masters in the Old South. CBS fired Snyder in the wake of those remarks and he never worked in network TV again.
It is more than merely “OK” to hold controversial positions; it is absolutely one’s right to express one’s views and to advocate for those controversial position. That does not mean that such expressions can be done without any consequences at all. Those expressions cannot be squelched by the government but those expressions can cost one a career or at least force one into a change of career.
Finally, let me end on a lighter note here with this “sports/political analysis” from Brad Rock in the Deseret News:
“WWE legend Kane has filed to run for mayor of Knox County, Tennessee.
“In 2013 Kane was voted Most Hated Pro Wrestler of the Year.
“Which means becoming a politician should be a natural transition, right?”
But don’t get me wrong, I love sports………