The ACLU’s strange bedfellows

Redskins Wrong But LegalHere’s some news:  The American Civil Liberties Union says the Redskins are wrong, damned wrong — but they’ve got every right in the world to be that way.

They even filed an amicus brief in the District Court in support of the Redskins’ right to be wrong.  Amicus briefs at the trial level are quite unusual.

The ACLU’s brief, and an earlier blog post on its site, both make explicit reference to the appeal of the PTO’s rejection of The Slants’ application to register their trademark, THE SLANTS, and to the inconsistency of the PTO in permitting “reappropriation” of derogatory terms when it comes to certain categories but not others:

The band describes itself as Asian-American and chose its name as a method of reappropriating the term. The Trademark Office nonetheless rejected the trademark because of its members’ ethnic heritage, stating that the term “slant” as applied to a band composed of Asian-Americans could only be seen as a slur.

Indeed, the reappropriation of terms that have historically disparaged marginalized groups is a common way for those same groups to reclaim the meaning of those terms and change social attitudes. Consider the fact that the group “Dykes on Bikes” had to fight to register its name, which was first rejected for being vulgar or disparaging, but later accepted after the group submitted evidence that the term “dyke” can be a source of pride for their community.

With friends like this…

A few points.  I’m not really sure of the order in which to make them, but let’s try.

First, and for those who either came in late or insist on soundbites, please, once again:

The actual appeal of the PTO’s denial of the registration of THE SLANTS by the Slants is not based on the “reappropriation” argument.  I explained that here.

That doesn’t mean there isn’t merit to that argument or that the ACLU is wrong to use it as rhetoric in another case.

It just happens that the procedural history of the application for THE SLANTS in the PTO gave rise to even more troubling issues, and we never got the opportunity to take on In re Heeb Media, LLC, 89 U.S.P.Q.2d 1071 (T.T.A.B. 2008) directly.  I agree with the ACLU, as I wrote in my commentary on that case, that the time has probably come to stop protecting people from their own offendedness.  But you might get the impression from reading the ACLU blog that The Slants are making that point on their pending appeal in the Federal Circuit; they aren’t.

Indeed, as the debate of these issues becomes more and more public it is important for anyone lining up these issues, as I have done myself, nonetheless not be misled by the verisimilitude between the ACLU’s position and patches of arguments made by The Slants. For example, one of those arguments the ACLU notes is what we might call the DYKES ON BIKES inconsistency, long a mainstay of this blog and treated at length in The Slants’ brief.   And The Slants do have a free speech and policy argument.  But it’s not based on “reappropriation.”

RDC-greyIn fact, on the one hand The Slants’ policy case is a stronger one than this, based as it is The Slants’ arguments that the record of the PTO’s examination demonstrates severe failures to meet the PTO’s own standards of evidence and administrative legal norms.  These alone would be sufficient to invalidate the refusal, but, The Slants argue, they also demonstrate the inherent bind the statutes vague and politicized requirements put the PTO in just by trying to enforce it.

On the other hand, the Redskins have something The Slants don’t have:  A very powerful takings argument, which is developed more in their own brief than in that of the ACLU.

Actually that makes a bunch of things the Redskins have that The Slants don’t, doesn’t it?   Because, of course, the Redskins have the ACLU — in court where it counts — whereas The Slants — in a blog, where it doesn’t; i.e., not so much.

Strange bedfellows, really.  The Slants, as the ACLU blog would have it, only want to call themselves what they want to call themselves; whereas Football wants to keep calling itself what other people, who are most certainly not Football, don’t want it to call itself.  As between the two, the ACLU feared for the free speech of the NFL, arguably the least restricted “speaker” on the planet.

(Which cause — the NFL’s — I’ve been doing my own little thing for in my own little, perhaps politically incorrect, way for quite some time.  But I’m not the ACLU.)

It’s the difference, I suppose, between public interest law and Public Interest Law.  Here you’ve got a multi-billion-dollar organization which already has the benefit of representation by fine lawyers — all, of course, on retainer.  And here you’ve got the pro bono publico services of your humble-as-ever blogger and his talented and lovely colleague, Joel MacMull, whose more-than-yeoman services on our The Slants’ appeal — especially the constitutional argument — should not go unnoticed out there.

But yeah.  The ACLU — Public Interest Law with initial caps, in case you’re reading this on a teletype — looked at these two cases, and chose to file an amicus brief — at the trial level no less! — in support of the NFL.  It passed on The Slants case.

Oh, you don’t think The Slants asked?

The Slants asked.  The ACLU considered it.  The request went up the system… it went through channels….

The ACLU declined to participate in the appeal.

The Slants’ Simon Tam, though, he’s a music guy; a kind of genius; and he has, unlike your blogger, whose insides have been charred to the blackest coal by a quarter century of litigation cynicism, a heart of gold.  And on Friday, as I tweeted my bitter thoughts to him on this matter, he was far more forgiving:.

True, that.  Mistakes?  I’ve made a few.

And, after all, did we need the ACLU?  Feh.

Well, come on, don’t you like having more support in your backfield?

You go to war with the army you have.

Ok, but:  Why the NFL yes but Simon and Slants no?

Because, my friends, that’s the way the ball bounces!  

Hike!

UPDATE:  Interesting echoes of the above in the seemingly unrelated U.S. Supreme Court trademark decision concerning the preclusive effect of TTAB determinations concerning LIKELIHOOD OF CONFUSION in B&B Hardware v. Hargis Industries Inc., handed down on March 24, 2015.

Ron Coleman

I write this blog.