Government Decided that 'Redskins' Bothers You
By George F. Will
WashingtonPost.com
Amanda Blackhorse, a Navajo who successfully
moved a federal agency to
withdraw trademark protections from the Washington
Redskins because it considers the team’s name
derogatory, lives on a reservation where Navajos
root for the
Red Mesa High School Redskins. She opposes this
name; the Native Americans who picked and retain it
evidently do not.
The U.S. Patent and Trademark Office acted on
a 1946 law banning trademarks that “may
disparage” persons. “May” gives the agency latitude
to disregard evidence regarding how many people
actually feel disparaged or feel that others should
feel disparaged. Blackhorse speaks of “the
majority of Native American people who have spoken
out on this.” This would seem implausible even
if
a 2004 poll had not found that 90 percent of
Native Americans were not offended by the Redskins’
name. A
2013 AP-GfK poll showed that 79 percent of
Americans of all ethnicities opposed changing it,
and just 18 percent of “nonwhite football fans”
favored changing it.
The
federal agency acted in the absence of general or
Native American revulsion about “Redskins,” and
probably because of this absence. Are the Americans
who are paying attention to this controversy
comfortable with government saying, in effect, that
if people are not offended, they should be, so
government must decide what uses of language should
be punished?
In today’s regulatory state, agencies often do
pretty much as they please, exercising discretion
unconstrained by law.
George Washington University law professor
Jonathan Turley
notes that in 2004 the Federal Election Commission
held that the anti-George W. Bush movie “Fahrenheit
9/11” did not need to be regulated as an
“electioneering communication” but in 2008 held that
the hostile “Hillary:
The Movie” was such a communication. In the
regulatory state, the rule of law is the rule that
law barely limits regulators’ discretion.
A Washington Redskins
football helmet lies on the field during NFL
football minicamp. (Nick Wass/AP)
Although the death penalty clearly
was not considered a “cruel and unusual” punishment
when the Eighth Amendment proscription of such
punishments was adopted, perhaps society’s “evolving
standards of decency” have brought this
punishment under the proscription. Standards of
decency do evolve: No sports team launched today
would select the name “Redskins.” Although
Thomas Sowell is correct that “some people are
in the business of being offended, just as Campbell
is in the business of making soup,” the fact that
some people are professionally indignant does not
mean offense may be given promiscuously to others.
The name “Redskins” is more problematic than, say,
that of the Chicago Blackhawks or Cleveland Indians
presumably because “Redskins” refers to skin
pigmentation. People offended by this might be
similarly distressed if they knew that “Oklahoma” is
a compound of
two Choctaw words meaning “red” and “people.”
Blackhorse, however, has two larger objections.
She says “someone” once told her that teams’ mascots
“are
meant to be ridiculed,” “to be toyed with,” “to
be pushed around and disrespected” and “have stuff
thrown at them.” She should supplement the opinion
of that someone with information from persons more
knowledgeable. But she considers “any team name that
references Native Americans” an injurious
“appropriation of our culture.” Has an
“appropriation” been committed by the
University of Utah and
Florida State University even though they have
the approval of the respective tribes for their
teams’ nicknames, the Utes and Seminoles?
William Voegeli, a senior editor of the Claremont
Review of Books,
writes that the kerfuffle over an NFL team’s name
involves serious matters. They include comity in a
diverse nation, civil discourse, and “not only how
we make decisions, but how we decide what needs to
be decided, and who will do the deciding.”
Time was, Voegeli writes, a tolerant society was one
with “a mutual non-aggression pact”: If your beliefs
and practices offend but do not otherwise affect me,
I will not interfere with them if you will
reciprocate regarding my beliefs and practices. Now,
however, tolerance supposedly requires compulsory
acknowledgment that certain people’s beliefs and
practices deserve, Voegeli says, “to be honored,
respected, affirmed and validated” lest they suffer
irreparable injury to their sense of worth. And it
requires compelling conformity for the good of the
compelled.
When two Oregon bakers chose, for religious reasons,
not to provide a cake for a same-sex wedding, an
Oregon government official explained why tolerance
meant coercing the bakers: “The
goal is to rehabilitate.” Tolerance required
declaring the bakers’ beliefs and practices
intolerable. We are going to discover whether a
society can be congenial while its government is
being coercive regarding wedding cakes and team
names.