The following is a post from C. Richard King, author of Redskins: Insult and Brand (Nebraska, 2016). King is a professor of comparative ethnic studies at Washington State University. He is the author or editor of more than a dozen books, including Team Spirits: The Native American Mascots Controversy (Nebraska, 2001) and Native Athletes in Sport and Society: A Reader (Nebraska, 2006).

This is not about Free Speech. It is about Racism. 

After reading recent coverage of Lee v. Tam, one might be forgiven for drawing the conclusion that the most important elements of the case were free speech and its implications for the Washington professional football team in the pending case, Pro-Football Inc. v Blackhorse. This framing, which pervades the media’s treatment of the case in the wake of the Supreme Court’s decision to hear the case in its current term, misconstrues the significance of both cases, missing the complex interplay of racism, power, and branding.

Both Lee v. Tam and Pro-Football Inc. v Blackhorse involve racial slurs, slant and redskin respectively, which the U.S. Trademark and Patent Office Trademark Trial Appeal Board (TTAB) deemed disparaging. Lee v. Tam appeals a ruling that disallows registration of Slants as a protected moniker by an Asian American band, Pro-Football Inc. v Blackhorse, which remains at a lower court, appeals a decision that stripped the Washington NFL franchise of some of its registered trademarks. Both cases challenge the Lanham Act, which grants the federal government the authority to reject or cancel trademarks that “may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”

They are not, however, parallel cases. Where the former involves a group of Aisan Americans seeking to counter racism by repossessing its basic vocabulary, the latter centers on a white owned football team that has profited on anti-Indian racism for decades, anchoring one of the most valuable franchises in professional sports in a keyword of conquest. It is, as I argue in my recent book on the team, an insult masquerading as a brand. The two couldn’t be more different: anti-racism through reappropriation on the one hand, racism as marketing strategy and brand on the other.

Moreover, while the reclamation of the racist term slant by the band seeks to blunt, if not actively heal, the injurious force of the slur, affirming in the process Asian American identity and autonomy in a racist society, the continued use of the racist term redskin, in contrast, denies the agency of indigenous peoples, misrepresents their cultures and histories, and reiterate white privilege of taking and remaking Indianness for profit and pleasure. Indeed, a number of recent studies have demonstrated that racist team names and the images associated with them hurt indigenous peoples, lowering their self-regard, damaging their sense of community worth, and negatively impacting their understandings of future possibilities. Over a decade ago, recognizing “the catastrophic effects of prejudice” associated with Native American team names and mascots, the American Psychological Association issued a position paper denouncing them.

One might concede all of the foregoing and assert that such speech, whatever its effects, remains constitutionally protected, free speech. Such a reading, to my mind, misses the distinction between permissibility and endorsement. While even the most vile racist expressions arguably merits protection from government restriction, it does not follow that government entities must endorse such speech. On the contrary, the government has an interest in curbing injurious speech, protecting civil liberties, and promoting equality for all of its subjects. Refusing racist speech by cancelling trademarks that denigrate would be one small instance of this, not unlike the decision by the state of Texas to reject license plates with the Confederate flag on them or school boards at the state and local level to opt ban racist team names and mascots.

In this frame, I would argue for discernment, making a clear distinction between Lee v. Tam and Pro-Football Inc. v Blackhorse: where the former pivots around reclamation, resistance, and rehabilitation, repurposing a slur for something other than disparagement, the latter centers of domination, denial, and distortion, profiting on accepted anti-Indian racism. This discernment necessarily argues for more refined discussions that decouple the two more clearly and refuse the false equivalencies that many in the media seem to accept and that the franchise and the NFL champion. Indeed, it demands that when we talk about speech, we place it in social and historical contexts, always mindful of the ways race and power shape communication and amplify the effects of names and utterances. In the end, both cases remind us that words are never just words, naming is about power, and speech in a racist society has the capacity to harm and to heal. It is past time for us to use our capacity to speak freely to uplift and include rather than injure and exploit.