The 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.
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 nonaggression 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 teams’ names.
George Will is a columnist for The Washington Post.