But I can't say that the District Court's decision surprised me. I know judges are always spinning the factual background of a case to support the argument they want to make. But when the facts concern an anti-trust matter, say, they're obliged to make at least a pretense of knowing what they're talking about. Whereas when it comes to language, all bets are off.In making our case, we put together what I think was a pretty strong portfolio of evidence to support the claim that redskin was a disparaging term when the mark was originally registered and remained so afterward. We had print citations for the word going back to the nineteenth century, like a passage from the 1910 edition of the Encyclopedia Britannica that described the word as not being "in good repute."
We showed that the modern press uses redskin in reference to Indians only as an example of a racial epithet or in campy references to old movies -- you don't find newspaper articles that say "Redskin Jay Silverheels was honored last night." We made a compilation video of clips that documented the disparaging use of redskin in movie Westerns, like the scene from the 1956 film Mohawk that had a character identified as an "Indian hater" referring to "dirty, mean, ignorant, slinkin' redskin skunks." And a survey showed that a substantial proportion of Native Americans find the word objectionable today.
But District Court Judge Colleen Kollar-Kotelly ruled that the evidence on the disparaging status of the word was inconclusive. Her arguments betrayed the mix of ignorance and illogicality that are depressingly common when courts stray into linguistic territory. Some examples:
The fact that a "not insignificant number of Americans have understood 'redskin(s)' to be an offensive reference to Native Americans," has nothing to do with whether Native Americans, themselves, consider the term "offensive," which would obviously be more probative or relevant.
Right. Even if non-Indians use redskin in a disparaging way, that doesn't mean that Indians don't take the label as a compliment. A rare people indeed, who don't care what others think of them -- you wonder why they filed the petition at all.
[T]he dictionary evidence only states that the term 'redskin(s)' is 'often offensive,' which, as Pro-Football observes, means that in certain contexts the term 'redskin(s)' was not considered offensive. In fact, the TTAB concluded that the term 'redskin(s)' means both a Native American and the Washington-area professional football team. The fact that it is usually offensive may mean the term is only offensive in one of these contexts."
Give me a break. Hedges like "usually" or "often" in a usage note are intended exempt certain specialized uses of a term -- as a reclaimed epithet by members of the group, say, or when the word is mentioned in a linguistic discussion of epithets. They don't mean that the term is inoffensive when it's used as a trademark to capitalize on some features of the group's stereotype, in this case the inhuman savagery that people associate with the Indians of movies and popular fiction. (By that logic, you could get away with marketing an SAT prep program as YidSmarts.) In fact, inasmuch as the Lanham Act takes a non-disparaging status as a precondition for registration of a term, you'd never be able to invoke the condition, since no mark could be judged disparaging until consumers decided whether it was offensive as the name of the product in question.
Under the "butter-wouldn't-melt" heading, in fact, you could put the Redskins claim that the success of the team brought honor to Indians -- in the same way, I assume, that the achievements of the New Jersey Devils bring honor to the Prince of Darkness.
The decision went on along these lines -- the judge opined, for example, that even though the Redskins' fans and newspapers used the team's name in ways that "often portrays Native Americans as aggressive savages and bufoons," with references to scalping opponents and by using pidgin English, the team itself has in recent years used Native American imagery respectfully. By that logic, a team could call itself the Washington Niggers without running afoul of the Lanham Act, so long as it was careful to post photos of Martin Luther King and Marian Anderson over the stadium doors. If the fans came to games in blackface and kinky wigs -- hey, that's not the team's look-out.
At this writing, the petitioners haven't decided whether they're going to appeal.
Posted by Geoff Nunberg at October 7, 2003 06:14 PM