Ashutosh Bhagwat is a professor of constitutional law at the University of California, Davis, School of Law.

Repulsive as the Redskins name and trademark are -- The Slants case is a more complicated story -- I firmly believe that banning the registration of disparaging trademarks is unconstitutional. The United States has exceptionally strong protections for free speech and, unlike most other modern democracies, does not have an exception for so-called hate speech that denigrates minorities (though such speech can be punished if it constitutes a threat or an in-person attack).

The Washington football team should change its name. But the way to accomplish that is through persuasion not the force of law.

Controversial though this is, I believe that it is justified both by the exceptionally uninhibited, robust and sometimes nasty nature of American democracy, and by concerns that the power to suppress hate speech will be abused by government officials. The reason we protect free speech by Nazis and the Ku Klux Klan is not that we believe this speech is valuable, but because we are concerned that permitting the government to suppress the speech we hate will lead to overreach, as it did during the McCarthy era. Given this, the “no-disparagement rule” would seem an open-and-shut case, since the only justification for it seems to be that disparaging trademarks such as the Redskins insult minorities.

Whatever the moral arguments, the only legal argument against this conclusion seems to be that trademarks constitute speech by the government itself, which is unconstrained by the First Amendment. That argument finds some support in a recent Supreme Court decision holding that specialty license plates issued by the State of Texas on behalf of private groups constitute government speech. But the argument is wrong – indeed, almost absurd (as, in my opinion, was the license plate decision). The idea that every trademark in this country, from Coca-Cola to Google, presents the government’s own message seems fantastic – and, by the way, would make all religious trademarks unconstitutional. The truth is, such arguments have been strategically invoked by those who detest what they see as racist expression such as the Redskins (or, in the license plate case, the Confederate battle flag), but they are unconvincing.

Make no mistake – I firmly believe the Washington football team should change its name -- and I grew up a fan. But the way to accomplish that is through persuasion, and perhaps a boycott, not the force of law.



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