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A Special Thank You to Suzan Shown Harjo

Posted in Articles, Branding, First Amendment, Law Suits, Marketing, SoapBox, Trademarks, TTAB, USPTO

Today marks the 25th anniversary of the filing of the petition to cancel the R-Word registrations held by Pro-Football, Inc., the NFL franchise playing near the Nation’s capital.

Indian Country Today has published an interview with Suzan Shown Harjo, lead petitioner in Harjo et al v. Pro-Football, Inc., and organizer of Blackhorse et al v. Pro-Football, Inc.

Thanks to Indian Country Today and Suzan Shown Harjo for sharing this interview. Its documentation of history is so important for anyone who cares where we’ve been as a country and where we’re headed; it is valuable and timeless, powerful and compelling.

I’m so thankful to Suzan for the opportunity to play a small part in this long yet unfinished history, and here is a photo of us together on May 15, 2015, at a conference in Hinckley, Minnesota, during a celebration honoring her lifetime of advocacy for Native peoples:

Suzan’s heretofore and ongoing work is truly remarkable and a testament to who she is, even in the face of ignorant vitriol, and to how many lives she has touched and continues to touch in such a profound, generous, and meaningful way.

As I reflect on the historic petition to cancel we filed together on September 10, 1992, one thing I can’t get out of my mind is the national press conference question I answered from the Washington D.C. press corps, something like “what about the First Amendment?”

As I recall, my response was, something like, the beauty of this cause of action is that the First Amendment is not implicated because removing the federal government’s erroneous approval of the racial slur doesn’t compel the team to change the name, having said that, it is of course our hope that the team does the right thing and pick another name.

Who could have guessed it would take nearly a quarter century to reverse prior court of appeals precedent (McGinley) saying Section 2(a) did not violate Free Speech or the First Amendment, and then to have the Supreme Court agree that refusing federal registration of disparaging matter under Section 2(a) of the Lanham Act is viewpoint discrimination and a violation of Free Speech.

Thankfully much awareness has been raised and good has been done over the past quarter century, while the NFL and Washington franchise double down together on their joint investment to retain exclusive rights in a racial slur.

Hopefully with increased awareness raised and the movement and pressure continuing, we won’t have to wait another quarter century for justice and clearer thinking on this issue by the NFL, FEDEX, and other NFL sponsors, if not Daniel Snyder himself.

As I reflect back a quarter century ago, to the day, it was never about banning the team’s Freedom of Speech, it was about removing the federal government’s approval of a racial slur as a federally-registered trademark, and providing team ownership with a financial incentive to reconsider their choice to ignore the obvious, as Suzan has noted:

“We liked the approach of a pocketbook incentive case that did not force a name-change, but counted on the greed of the team owner to drop the name if exclusive federal trademarks were cancelled.”

“The pocketbook approach put things squarely where pro sports differed from educational sports: money. In most name and symbol changes made in educational sports, we had a way of discussing the issues and solutions, because there almost always were educators and officials who genuinely cared about the well-being of the students. In pro sports, even the health and safety issues seemed focused on liability and not on human beings, and some paid fans seemed physically provocative, while others seemed orchestrated online to attack and defame those of us who were challenging the NFL franchise in orderly legal forums.”

“Another reason I liked the pocketbook approach was that it didn’t impede anyone’s free speech. I was at WBAI-FM  in 1973, when the “seven dirty words” case started down the road to the Supreme Court’s 1978 ruling against free speech. The free speech flagship station of the Pacifica network, WBAI aired a cut from Comedian George Carlin’s “Class Clown” album and a listener complained to the Federal Communications Commission that his young son was wrongly exposed to dirty words. George Carlin’s “Seven Words You Can Never Say on Television” was based on an earlier routine by Comedian Lenny Bruce that was an excuse for one of his many arrests and jailings for using dirty words. The upshot of FCC v. Pacifica Foundation was that the federal government can restrict free speech in certain instances, the opposite of the Court’s 2017 ruling in The Slants case against the PTO, which rendered part of the trademark law unconstitutional as violative of the First Amendment. We never thought we were violating the NFL’s freedom of expression by using the same section of the trademark law.”

Ironically, as team owner Daniel Synder freely and proudly admits, the team’s ability and commitment to continue using the name will never change, even in the face of the mountain of evidence demonstrating its offensiveness and meaning as a racial slur, and even in the face of losing on the merits three times (twice at the TTAB, once at the E.D. Va.), or more.

So much for the Supreme Court’s concern that Section 2(a) actually chills Freedom of Speech, because according to Snyder, even after losing on the merits he has reaffirmed: “We will never change the name of the team,” “It’s that simple. NEVER — you can use caps.”

So, in the end, it is about the money, and the NFL clearly has had sufficient funds to defend the indefensible for a quarter century now, so isn’t it time FEDEX and other NFL sponsors step up and get on the right side of this issue, with their money? Let’s all follow the money.

Here’s to you Suzan, be well, Aho.