Washington Redskins lost protection of their logo and indian symbol. Symbol of race or racism?
In law, one generally strives for uniformity, as in Leviticus 24:22: “You shall have one manner of law; the same for the home-born as for the stranger,” but there are problems with putting this into effect when dealing with racism. The law seems to allow each individual group to denigrate itself with words that outsiders are not permitted. This is seen regularly in rap songs but also in advertising.
Roughly a year ago, the US Patent office revoked the copyright protection for the Washington Redskin logo and for the team name causing large financial loss to the Redskins organization. The patent office cited this symbol as the most racist-offensive in sports. I suspect this is bad law, in part because it appears non-uniform, and in part because I’m fairly sure it isn’t the most racist-offensive name or symbol. To pick to punish this team seems (to me) an arbitrary, capricious use of power. I’ll assume there are some who are bothered by the name Redskin, but suspect there are others who take pride in the name and symbol. The image is of a strong, healthy individual, as befits a sports team. If some are offended, is his (or her) opinion enough to deprive the team of its merchandise copyright, and to deprive those who approve?
More racist, in my opinion, is the fighting Irishman of Notre Dame. He looks thick-headed, unfit, and not particularly bright: more like a Leprechaun than a human being. As for offensive, he seems to fit a racial stereotype that Irishmen get drunk and get into fights. Yet the US Patent office protects him for the organization, but not the Washington Redskin. Doesn’t the 14th amendment guarantee “equal protection of the laws;” why does Notre Dame get unequal protection?
Notre Dame’s Fighting Irishman is still a protected symbol. Is he a less-offensive, racist stereotype?
Perhaps what protects the Notre Dame Irishman is that he’s a white man, and we worry more about insulting brown people than white ones. But this too seems unequal: a sort of reverse discrimination. And I’m not sure the protection of the 14th was meant to extend to feelings this way. In either case, I note there are many other indian-named sports teams, e.g. the Indians, Braves, and Chiefs, and some of their mascots seem worse: the Cleveland Indians’ mascot, “Chief Wahoo,” for example.
Chief Wahoo, Still protected symbol of the Cleveland Indians –looks more racist than the Redskin to me.
And then there’s the problem of figuring out how racist is too racist. I’m told that Canadians find the words Indian and Eskimo offensive, and have banned these words in all official forms. I imagine some Americans find them racist too, but we have not. To me it seems that an insult-based law must include a clear standard of how insulting the racist comment has to be. If there is no standard, there should be no law. In the US, there is a hockey team called the Escanaba (Michigan) Eskimos; their name is protected. There is also an ice-cream sandwich called Eskimo Pie — with an Eskimo on the label. Are these protected because there are relatively fewer Eskimos or because eskimos are assumed to be less-easily insulted? All this seems like an arbitrary distinction, and thus a violation of the “equal protection” clause.
And is no weight given if some people take pride in the symbol: should their pride be allowed balance the offense taken by others? Yankee, originally an insulting term for a colonial New Englander became a sign of pride in the American Revolution. Similarly, Knickerbocker was once an insulting term for a Dutch New Yorker; I don’t think there are many Dutch who are still insulted, but if a few are, can we allow the non-insulted to balance them. Then there’s “The Canucks”, an offensive term for Canadian, and the Boston Celtic, a stereotypical Irishman, but also a mark of pride of how far the Irish have come in Boston society. Tar-heel and Hoosiers are regional terms for white trash, but now accepted. There must be some standard of insult here, but I see none.
The Frito Bandito, ambassador of Frito Lays corn chips; still protected, but looks racist to me.
Somehow, things seem to get more acceptable, not less if the racial slur is over the top. This is the case, I guess with the Frito Bandito — as insulting a Mexican as I can imagine, actually worse than Chief Wahoo. I’d think that the law should not allow for an arbitrary distinction like this. What sort of normal person objects to the handsome Redskin Indian, but not to Wahoo or the Bandito? And where does Uncle Ben fit in? The symbol of uncle Ben’s rice appears to me as a handsome, older black man dressed as a high-end waiter. This seems respectable, but I can imagine someone seeing an “uncle tom,” or being insulted that a black man is a waiter. Is this enough offense to upend the company? Upending a company over that would seem to offend all other waiters: is their job so disgusting that no black man can ever be depicted doing it? I’m not a lawyer or a preacher, but it seems to me that promoting the higher levels of respect and civil society is the job of preachers not of the law. I imagine it’s the job of the law to protect contracts, life, and property. As such the law should be clear, uniform and simple. I can imagine the law removing a symbol to prevent a riot, or to maintain intellectual property rights (e.g. keeping the Atlanta Brave from looking too much like the Cleveland Indian). But I’d think to give people wide berth to choose their brand expression. Still, what do I know?
Robert Buxbaum, August 26, 2015. I hold 12 patents, mostly in hydrogen, and have at least one more pending. I hope they are not revoked on the basis that someone is offended. I’ve also blogged a racist joke about Canadians, and about an Italian funeral.
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Mr. Berman,
Your post is an articulate exploration of a very important question, but I would like to explain what I think is faulty about your argument.
There are several unstated logical extensions of the case you’ve tried to make:
1. Those who allege “unequal treatment” based on the U.S. Constitution, the 14th Amendment, or related law, must first discern and address the most severe injustices if they are to be taken seriously or else their arguments are to be judged illegitimate.
2. As a corollary to the above, any effort to right a social wrong can be invalidated if it can be shown that greater or equal wrongs exist elsewhere at the same time.
3. Because of the difficulty (the impossibility, actually) of determining when an appropriate threshold of wrong or offense has been reached, it is improper for a just society to enforce standards of behavior through the legal system short of those that involve physical violence.
These requirements are illogical, unattainable, and inconsistent with the history of social change in the U.S.
Social change and the pursuit of justice (tikkun olam, in the Jewish tradition) occur non-linearly, and they almost always live in tension with existing and important principles such as “free speech” that are central to our existence as a country. There is nothing new in this, and U.S. history is replete with examples of advances in social justice that initially offended many people and contradicted “truths” and “rights” that were guaranteed according to someone’s interpretation of the Constitution at the time. Working through those issues is a messy business, but it is the essential business of a just and progressive society. We never have and should not now accept the three criteria above as a basis for assessing the legitimacy of a political or social movement.
These issues are more difficult when the subject is symbols or words because these carry more ambiguity than actions that cause or threaten direct physical violence. Yet, can we deny that symbols and words have the power to change lives and societies, for better or for worse? The marketing profession certainly understands and uses this fact very effectively, and our history is full of examples of words and symbols being used to spark progressive social movements or, on the other hand, to feed malevolent or oppressive agendas.
We all know that there are some symbols and words that we do not tolerate. In most cases our opposition brings about voluntary change as a result of community pressure or commercial realities (Why else has Walmart stopped selling items adorned with the Confederate battle flag?), but our legal system has always found ways to provide an extra push when it is needed. The fact that one particular case (the Washington Redskins) becomes the poster child for today’s effort to accelerate change that occurred elsewhere many years ago is neither unprecedented nor illogical (e.g., it was in 1980 that the Stanford Indians changed their mascot and “brand” to the Stanford Cardinal, due in no small part to the fact that Stanford found itself enrolling a significant number of students with native American heritage). It is irrelevant that the Redskins are or are not the worst current example of a practice that some people are wanting to change through the political system. Let’s remember that the most consequential constitutional issues in our system are usually resolved in the Supreme Court in the context of relatively obscure and often inconsequential lower court cases that happen to rise to a level where they provide an opportunity for resolution and, often, social change.
So…yes…there are superficial contradictions and apparent inconsistencies in the give and take about language and symbols that leads to decisions or consensus about many important issues on the road to social justice, but that does not render the efforts illegitimate. ”Black Lives Matter” is an important emerging movement and a powerful symbol; but, yes, we know that “all lives” also matter. “War on Women” effectively represents a very real set of political tendencies and mobilizes people who want to reverse those trends; but, yes, it is a bit of verbal hyperbole. The South Carolina legislatures (followed by authorities in other localities) finally changed a law that mandated that the Confederate battle flag be displayed on the capitol grounds; but, yes, that flag may, in fact, have become a symbol of intergenerational family pride for some people (although they would have to ignore the well-documented reality that it was resurrected 50 years ago for the very explicit purpose of demonstrating resistance to the Civil Rights Act of 1964). The Office of Civil Rights has made it possible – mandatory, actually – for all colleges and universities in this country to take action to rid their campuses of certain symbols and expressions of misogyny and sexual harassment and assault; but, yes, we have not yet seen the last challenge to those policies based on assertions of First Amendment rights or inadequate “due process”. This is how social change happens.
The Washington Redskins have become the poster child for a movement that asserts that we would be a healthier society if we did not use racially-based caricatures for entertainment purposes. It is of no consequence that the movement is not simultaneously mounting a campaign against similar caricatures. The movement will succeed or not based on the judgment of the political and judicial systems, not on whether or not it was the worst example of a racially-based caricature. A test case has emerged. This is how social change happens.
And if, in the end, what emerges is a consensus that some racially or nationally based caricatures are offensive and other aren’t, because of different historical contexts or different current realities, that will be both instructive and useful. This is how social change happens.