What’s in a (team) name? Controversy, to be sure

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Newseum NOW!: What’s in a (team) name?
Watch the premiere episode of Newseum NOW!, the Newseum Institute’s new series of “on-the-news” programs, featuring a timely discussion about Washington’s NFL team nickname.

First, let’s make clear, just once, what we’re going to discuss here: The word and nickname “Redskins,” used for decades by the Washington D.C. team in the National Football League.

The nickname has been controversial and has been challenged for decades – including one 17-year lawsuit – by Native American groups. There’s dispute over exactly how many are opposed, but no real doubt about “many.”

In the past year or so, both public criticism and legal opposition has ramped up — comparing the nickname to the “N-word” or other racial epithets, and claiming that it’s grounded in bigotry and racial hatred. A number of news media outlets and individual reporters, columnists and broadcasters have declared they no longer will use the word.

At the same time, Washington team owner Dan Snyder has vowed to never — as he put it, NEVER — change the name. Snyder and others have countered with evidence that clearly shows not all Native Americans consider the nickname a slur or insult. Some supporters of the nickname say its meaning when associated with the team either is untainted by racism or an honorific use that conveys images of bravery and native dignity.

The U.S. Patent Trademark Trial and Appeal Board ruled 2-1 in June to cancel the team’s nickname trademark registration. But that move appears more about the ultimate value of “team property” than as a free speech conflict — since, if the board’s decision is upheld, the team could still use the ID along with anyone else.

Then came news this week that a petition was filed Sept. 2 with the Federal Communications Commission, asking it to effectively ban use of the nickname from public (broadcast) airwaves on the grounds that the word is “a racist racially derogatory word”— carrying special legal meaning when it comes to FCC regulations.

FCC chairman Thomas Wheeler said that the commission will consider the petition, filed by George Washington University professor John Banzhaf. Wheeler told reporters, “We will be dealing with that issue on the merits and we’ll be responding accordingly. … There are a lot of names and descriptions that were used over time that are inappropriate today. And I think the name that is attributed to the Washington football club is one of those.”

For some First Amendment advocates, the petition has no chance in law, given that the FCC’s decades-old, legally accepted ban has been only words or images that describes sexual or excretory activities or organs in a patently offensive manner. And even that standard has a qualifier of “community standards” of the particularly time.

Those backing the petition to the FCC may well be banking on something less — that networks, stations and others leery of long and expensive legal activity, even if they expect to win, will, in effect, adhere to a “rule” that won’t exist. Non-legal doctrine applies: Something is better than nothing.

But why employ the heavy hand of government-as-censor at all? No law bans use of the “N-word” — but what once, shamefully, was accepted in much of society is now generally unacceptable (though debates continue over use of the word by African Americans). Likewise, ethnic slurs about Irish, Italians, Chinese, Poles and others survived well into the 20th century. Those derogatory terms also have been zoned out of use by most Americans.

The First Amendment exists to protect speech on the fringes of acceptability, in order to permit the widest possible exchange of views and ideas. While the petition to the FCC is rooted in part in the argument that there is no public benefit to the continued use of the Washington team nickname, as a society we have kept exceptions to free speech very limited, so as not to preclude today what may prove valuable tomorrow. Even as racist laws and segregationist ideas found a home in the nation’s legal structure, no ban existed to prevent discussion of “integration” or criticism of racist actions — though there’s little doubt that might have found strong support at times.

A far better and effective course has been to use the court of public opinion rather than the court of law to change social attitudes. Contrast the extended litigation over years involving the FCC’s attempt to designate and punish someone associated with the infamous 2004 Janet Jackson “wardrobe malfunction” to the immediate results in 2007 of public criticism of radio host Don Imus for using racist language to refer to African American players on the Rutgers University basketball team.

Within a short period, Imus was off the air for a time as listeners and advertisers weighed in. In the end, Imus apologized for “thoughtless and stupid” remarks. Perhaps not a penalty as severe or long-lasting as some felt he deserved, but years-quicker result than possible through the courts. The legal structure properly demands due process, and thus time, before criminal or administrative penalties are imposed.

Even if both the trademark denial and the FCC petition eventually fall short, they may well ultimately prove effective steps at focusing attention on an inescapable fact: Some Americans are offended by a the Washington team nickname — and similar ones — that have been widely used.

The marketplace of ideas, not a judge or commissioner or some other government minion, would seem the best means to decide what words belong in the past, not the future.

Gene Policinski is Chief Operating Officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at [email protected]

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