Supreme Court ruling poses hurdle for opponents of racist NFL mascot

Monday, June 19, 2017

A landmark decision from the nation's highest court threatens the long-running case against the Washington NFL team's racist mascot.

A group of young Native activists, led by Navajo Nation citizen Amanda Blackhorse, secured victory when the U.S. Patent and Trademark Office said the team's symbols were "disparaging" to Native peoples. A federal judge agreed.

But the U.S. Supreme Court, in a complex ruling issued on Monday, changed the game. By a majority vote, the justices held that the federal law utilized by Blackhorse and her allies is unconstitutional.

The ruling came in Matal v. Tam, a closely-related trademark case. Blackhorse and her fellow Native activists, along with a slew of tribes and inter-tribal organizations, submitted briefs to the Supreme Court in hopes of protecting the Lanham Act, the federal law at issue.

Justice Samuel Alito rejected those calls in an opinion that was joined by all of his colleagues. He cited the tribal brief no less than three times in explaining why the law violates the right to free speech promised by the First Amendment to the U.S. Constitution.

“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate,'” Alito wrote for the court in the 25-page opinion.

Amanda Blackhorse, a member of the Navajo Nation, has been leading the fight against the Washington NFL team's racist mascots. Photo by Shaida Tabrizi / Cheyenne & Arapaho Tribal Tribune

The Supreme Court took action almost three years to the day of the Native activists' original victory against the NFL team. In Blackhorse v. Pro Football, Inc., the Trademark Trial and Appeal Board said six “Redskins” marks could not be registered under the Lanham Act because they disparaged Native peoples and brought them into disrepute.

The team immediately fought the ruling by taking it to the federal court system. A year later, in July 2015, Judge Gerald Bruce Lee upheld the board in another victory for the activists.

“The record contains several dictionaries defining 'redskins' as a term referring to North American Indians and characterizing 'redskins' as offensive or contemptuous,” wrote Lee, who is based in Virginia, where the team maintains its headquarters and training facilities.

The battle took a more convoluted turn as the team asked the 4th Circuit Court of Appeals, also based in Virginia, to overturn the ruling. But before arguments were even heard, Pro-Football tried to get its case to the Supreme Court by capitalizing on Tam, which had already been added to the docket.

Although the Supreme Court turned away the request, the team sought to delay proceedings in the 4th Circuit. The case was put on hold in order to wait for the outcome in Tam, which was one of the closely-watched petitions of the current term.

Indianz.Com on SoundCloud: U.S. Supreme Court Oral Arguments in Matal v. Tam (Lee v. Tam) January 18, 2017

Only eight justices heard Tam in January and all of them unanimously agreed with the basic premise: the Lanham Act's “disparagement clause” is unconstitutional. But, in a sign of the complexity of the matter, the court split along conservative and liberal lines in different parts of the opinion, with no faction garnering more than 4 votes.

Justice Anthony Kennedy wrote a concurrence that was joined by more liberal-leaning colleagues. Justice Clarence Thomas wrote separately to express his views on free speech in a short concurrence.

Justice Neil Gorsuch, who joined the Supreme Court in April after securing unprecedented support from Indian Country, did not participate in the handling of the case.

Blackhorse and her fellow petitioners weren't the first to challenge the team's trademarks. They took up the cause after a different federal appeals court said activist Suzan Shown Harjo, who received the Presidential Medal of Freedom in recognition of her efforts on mascots, repatriation and other issues, waited too long to take action.

U.S. Supreme Court Decision in Matal v. Tam:
Syllabus | Opinion [Alito] | Concurrence [Kennedy] | Concurrence [Thomas]