Is “Tolerance” The New “Diversity”?

The politically correct speech enforcers at the Patent and Trademark office have just voted, for the second time, to cancel several Washington Redskins trademarks that contain the term “Redskins” because Section 2(a) of the Lanham Act “prohibits registration of marks that may disparage persons or bring them into contempt or disrepute.” (The first such decision, in 1999, was overturned on appeal.)

A strong argument can be made that this provision of the Lanham Act itself clearly violates the First Amendment. As UCLA professor and Washington Post blogger Eugene Volokh has just argued, trademark registration “should be seen as a form of ‘limited public forum,’ in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination.”

Courts, however, have yet to adopt this interpretation, making it unclear what implications, if any, the Redskins decision will have on several universities. Stanford abandoned its “Indians” symbol in 1972, but Florida State still maintains its “Seminoles” trademark as does the University of Utah on “Utes,” “Runnin Utes,” “Lady Utes,” as well as the “Circle and Feather” around the letter U. In addition, let us not fail to notice Notre Dame, which has registered trademarks for “Irish,” ”Fighting Irish,” and “Fightin Irish.” Surely there must be some Hibernians somewhere who regard the combative little leprechaun that is one of the protected images as “disparaging.”

Fox News believes that Florida State’s Seminoles and Utah’s Utes may be safe from the speech police because their uses “have been endorsed by the tribes,” but I am not so sure. Utah’s “Circle and Feather,” for example, is not tribe-specific. And can one really believe that the officious Patent and Trademark office that yanked “Redskins” would tell other Native Americans that they have no standing to feel disparaged simply because they themselves are not members of the Seminole or Ute tribes?

The impact of the “Redskins” decision will probably be highly unanticipated, both much smaller and much greater than most people expect. Smaller, because the appeal may take years and may succeed. Moreover, whether the appeal succeeds or not, David Post, professor of intellectual property law at Temple, points out, the odd trademark legislation has no effect on the ownership of trademarks, which is left to state common law. As a result, Prof. Post writes, “the impact of this ruling (cancelling the registration) is pretty limited; Pro-Football, Inc., the owner of the “Redskins” mark, can not only continue … to use the Redskins mark, it can continue to enforce the mark in federal court, i.e. it still has federally-secured rights against infringers.”

Nevertheless, I would add, since most people equate registration with ownership (Prof. Post suggests that even “99% of US lawyers” do), and since there is no requirement to register terms the ruling removing the registration of “Redskins” could well lead to an increase in its use. As the Washington Post noted happily (but perhaps incorrectly) in its editorial, if the decision stands it “would allow anyone to use the name and team logo on merchandise, thus reducing revenue to the Redskins and the National Football League.”

Finally, one other effect of the ruling must be noted, one best exemplified by the preening and sanctimonious Washington Post editorial just quoted, “Trademark decision against the Redskins is a victory for tolerance.” Whatever one may think of the wisdom or propriety of using the term “Redskins,” an agency of the state penalizing its use, supported by the unanimous cheers of all the independent minds in the politically correct mob stigmatizing all those who disagree with them as disgusting racists, is anything but an example of “tolerance.”

Making the inevitable comparisons to race, the Post editors quoted with approval one of the trial board’s justifications of its decision: “The recognition that this racial designation based on skin color is disparaging to Native Americans” is demonstrated “by the near complete drop-off in usage of ‘redskins’ as a reference to Native Americans beginning in the 1960’s.” Never mind that the promotion of “diversity” itself requires “racial designation based on skin color.”

Language, the Post Editorial Board observe as though it had discovered something profound and new, changes. What is “beyond dispute,” it claims, “is that the name [Redskins] today is an insult. The common-sense proof: No person in his right mind would even think of using it to address a Native American.”

Really? If the Patent and Trademark Office and its cheerleaders among the Democrats and on the Editorial Board of the Washington Post are to be taken seriously (a big “if”), then the registered trademarks of the National Association for the Advancement of Colored People and the United Negro College Fund must now be at considerable risk. (Both the NAACP and UNCF have vigorously protected their marks.)

“Today,” of course, “no one in his right mind would even think” of referring  to NAACP officials as colored people or to leaders of UNCF as Negroes. Few, however, will be surprised if all the right minds at the Washington Post and the Patent and Trademark Office leave those marks unchallenged. After all, the “victory for tolerance” celebrated by the Post resembles real tolerance about as much as the “diversity”-justified racial discrimination it supports resembles real diversity.